Supreme Court of India

Rejanish K.V vs K. Deepa on 9 October, 2025

Author:
B.R. Gavai

Bench:
B.R. Gavai

2025 INSC 1208 REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL/INHERENT JURISDICTION

CIVIL APPEAL NO. 3947 OF 2020

REJANISH K.V. …APPELLANT

VERSUS

K. DEEPA AND OTHERS …RESPONDENTS

WITH

WRIT PETITION (C) NO. 759 OF 2017

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CIVIL APPEAL NO. 1700 OF 2020

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Signature Not Verified

Digitally signed by
NARENDRA PRASAD
MISCELLANEOUS APPLICATION NO. 179 OF 2021
Date: 2025.10.09
12:05:26 IST
Reason:
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MISCELLANEOUS APPLICATION NO. 1050 OF 2021
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CIVIL APPEAL NO.1698 OF 2020

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WRIT PETITION (C) NO. 1080 OF 2019

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CIVIL APPEAL NO. 1698 OF 2020

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WRIT PETITION (C) NO. 414 OF 2016

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WRIT PETITION (C) NO. 405 OF 2016
REVIEW PETITION (C) NO. 782 OF 2021
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WRIT PETITION (C) NO. 639 OF 2018

WRIT PETITION (C) NO. 857 OF 2021

REVIEW PETITION (C) NO. 989 OF 2021
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TRANSFER PETITION (C) NO. 272 OF 2018

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CIVIL APPEAL NO. 1703 OF 2020

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CIVIL APPEAL NO. 1706 OF 2020

REVIEW PETITION (C) NO. OF 2025
DIARY NO. 18470 OF 2021
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WRIT PETITION (C) NO. 608 OF 2018

REVIEW PETITION (C) NO. 1354 OF 2021
IN
CIVIL APPEAL NO. 1698 OF 2020

REVIEW PETITION (C) NO. 1042 OF 2022
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WRIT PETITION (C) NO. 999 OF 2019

CIVIL APPEAL NO. 11390 OF 2025

WRIT PETITION (C) NO. 827 OF 2025
INDEX

A. INTRODUCTION ....................................................................... 5
B. SUBMISSIONS .......................................................................... 6
C. ISSUE FOR CONSIDERATION.............................................. 15
D. PROVISION OF LAW AND PRECEDENTS.............................. 16
i. Text of
Article 233
of the Constitution............................... 16
ii. Case Laws .......................................................................... 20
a. Rameshwar Dayal v. The State of Punjab and Others ..... 20
b. Chandra Mohan v. State of Uttar Pradesh and Others .... 28
c. State of Assam and Another v. Kuseswar Saikia and Others
……………………………………………………………………………..37
d. A. Panduranga Rao v. State of Andhra Pradesh and Others
……………………………………………………………………………..41
e. Satya Narain Singh v. High Court of Judicature at
Allahabad and Others ........................................................... 45
f. Sushma Suri v. Govt. of National Capital Territory of Delhi
and Another .......................................................................... 54
g. Deepak Aggarwal v. Keshav Kaushik and Others ........... 59
h. Vijay Kumar Mishra and Another v. High Court of
Judicature at Patna .............................................................. 62
i. Dheeraj Mor v. High Court of Delhi.................................. 68
j. All India Judges Association and Others v. Union of India
and Others ............................................................................ 80
E. CONSIDERATION ................................................................... 85
i. Textual and Contextual Interpretation ............................... 85
ii. Scheme of
Article 233
of the Constitution ......................... 87
iii. Recommendations of the Shetty Commission .................... 92
iv. Experience of a Judicial Officer .......................................... 96
v. Interpretation of a Constitutional Provision cannot be
pedantic ................................................................................. 106
vi. Eligibility of a Judicial Officer for Direct Recruitment...... 107
vii. Break in practice of a prospective candidate .................... 111
viii. Quota for Advocates under
Article 233(2) ...................... 112

ix. Doctrine of stare decisis .................................................. 112
F. CONCLUSION AND DIRECTIONS .......................................... 116
JUDGMENT

B.R. GAVAI, CJI

A. INTRODUCTION

1. A three-Judge Bench of this Court in this batch of

matters, vide order dated 12th August 2025, had referred the

following substantial questions of law for consideration of a

Constitution Bench:

(i) Whether a judicial officer who has already
completed seven years in Bar being recruited for
subordinate judicial services would be entitled
for appointment as Additional District Judge
against the Bar vacancy?

(ii) Whether the eligibility for appointment as a
District Judge is to be seen only at the time of
appointment or at the time of application or
both?

2. When this batch of matters was listed for directions on

12th September 2025, the following additional questions were

also framed by the Constitution Bench:

(iii) Whether there is any eligibility prescribed for a
person already in the judicial service of the
Union or State under
Article 233(2)
of the
Constitution of India for being appointed as
District Judge?

(iv) Whether a person who has been Civil Judge for
a period of seven years or has been an Advocate
and Civil Judge for a combined period of seven
years or more than seven years would be eligible
for appointment as District Judge under
Article
of the Constitution of India?

3. For ease of convenience, the parties that support the

proposition and contend that the questions framed be

answered in favour of in-service candidates and they be

permitted to participate in direct recruitment for the post of

district judges will be referred to as the Petitioners and those

opposing the proposition and contending that the direct

recruitment should be only from the category of advocates

with seven years’ practice will be referred to as the

Respondents.

B. SUBMISSIONS

4. We have extensively heard Mr. Jayant Bhushan,

Mr. Arvind P. Datar, Mr. P.S. Patwalia, Mr. V. Giri, Ms. Vibha

Datta Makhija, Mr. Jaideep Gupta, Dr. Manish Singhvi, Mr.

Dama Seshadri Naidu, Mr. George Poonthottam, Mr. Gopal
Sankaranarayanan, Dr. Menaka Guruswamy, Mr. Rajive

Bhalla, Mr. Anil Kaushik, Mr. Amit Anand Tewari, Mr. B.H.

Marlapalle, Mr. Narendra Hooda and Mr. Anand Sanjay M.

Nuli learned Senior Counsel appearing on behalf of the

Petitioners.

5. We have also extensively heard Mr. C.U. Singh, Mr.

Nidhesh Gupta, Mr. Vijay Hansaria, Mr. Ravindra Shrivastava,

Mr. Rajiv Shakdher learned Senior Counsel along with

Mr. Amit Gupta, Mr. Kanhaiya Singhal, Mr. Rashid N. Azam,

Mr. Sandeep Sudhakar Deshmukh, Ms. Sindoora VNL,

Mr. Yashvardhan, Ms. Kavya Jhawar and Ms. Nandini Rai

learned counsel for the Respondents and Mr. Siddharth Gupta

and Mr. Satyam Chand Soriya for the intervenors.

6. We have also perused the material painstakingly put

together by Mr. Ajay Kumar Singh and Mr. John Mathew who

assisted the Court as Nodal Counsel for the Parties.

7. The gist of the arguments advanced by the learned

Senior Counsel appearing for the Petitioners is that:
i. The judgment of this Court in Dheeraj Mor v. High

Court of Delhi1 misreads
Article 233(2)
of the

Constitution.

ii. The construction given by Dheeraj Mor (supra) to

the effect that a person has to be presently an

advocate or a pleader makes the words “a person

not already in the service of Union or State” totally

superfluous and redundant which cannot be

permitted.2

iii. A plain reading of
Article 233(2)
of the Constitution

indicates that there are two sources/streams i.e.,

either a person has to be in service of the Union or

State (which has been held to be judicial service3)

or he has to be an advocate or pleader for seven

years. Once the person is already in judicial service,

no further eligibility is prescribed for being

appointed as a district judge as held by this Court

1 (2020) 7 SCC 401
2 Union of India and Another v. Hansoli Devi and Others (2002) 7 SCC 273.
3 Chandra Mohan v. State of Uttar Pradesh and Others 1966 SCC OnLine SC 35.
in the case of Rameshwar Dayal v. The State of

Punjab and Others4.

iv. The interpretation excluding Civil Judges from

being eligible to be appointed directly as district

judges is unreasonable and against the interest of

administration of justice. A person in judicial

service would certainly be more experienced and

more suitable for appointment. Any exclusion by

the relevant rules would be violative of
Articles 14

and
of the Constitution.

v. There is no requirement of any period of time or

experience that a Civil Judge must possess to be

eligible for direct recruitment as a district judge.

Article 233
does not lay down any such

requirement. In any case, if this Court deems it fit

that there is such a requirement then seven years’

experience as a Civil Judge or combined experience

of seven years as an advocate and a Civil Judge

would be sufficient. Reliance is also made in this

4 1960 SCC OnLine SC 123
respect on Explanation (aa) of
Article 217(2)
of the

Constitution.

vi. The use of the words “has been” in
Article 233(2)
of

the Constitution means a state of affairs which had

existed in the past and need not to be continuing in

the present. The words “has been” without being

followed by participle of the verb is the present

perfect tense of “to be” and cannot be the present

perfect continuous tense.5 Further, a reading of the

Hindi version of the Constitution would show that

the expression used is “pleader raha hain” and not

“pleader hain”.

vii. All the petitioners in the case of Deepak Aggarwal

v. Keshav Kaushik and Others6, had claimed

themselves to be advocates on the date of their

application for the post of district judge by way of

direct recruitment and thus this Court in the said

case was not dealing with the issue as to whether

5 Mubarak Mazdoor v. Mr. K.K. Banerji 1957 SCC Online All 196, Harbhajan Singh

v. Press Council of India and Others (2002) 3 SCC 722 and Surendra Singh s/o
Ram Shanker Singh and Another v. State of U.P. through Secretary Home and
Another 2012 SCC Online All 37.
6 (2013) 5 SCC 277
being an advocate on the date of application and

appointment is a necessary criterion or not. In spite

of this, this Court in Deepak Aggarwal (supra)

held that one of the essential requirements of
Article

233(2)
is that the candidate must be continuing as

an advocate on the date of application. This finding,

therefore, is in the nature of an obiter dicta and not

ratio decidendi.

8. The gist of the arguments advanced by the learned

Senior Counsel/counsel appearing for the Respondents is

that:

i. For the last 60 to 65 years, the interpretation of

Article 233
of the Constitution has been uniform

and has stood the test of time. What was held by

the two Constitution Bench judgments of this Court

in the cases of Rameshwar Dayal (supra) and

Chandra Mohan (supra) has been further

interpreted by several three-judge bench judgments

of this Court. It is given that there are two

sources/streams of recruitment to the post of

district judges and that direct recruitment is only
from the stream of practicing advocates. Reliance in

this respect has been placed on the judgments of

this Court in the cases of Mahesh Chandra Gupta

v. Union of India and Others7 and Deepak

Aggarwal (supra).

ii. Stare decisis et non quieta movere or to “stand by

decisions and not to disturb what is settled”, is a

doctrine which clearly applies to the present

reference. The questions raised by serving judicial

officers in the present matter are covered by over six

decades of stare decisis. The directions issued by

this Court in paragraphs 27 and 28 of All India

Judges’ Association and Others v. Union of

India and Others8, directing a quota of 75:25 for

recruitment to the posts of district judges in all

States, with 25% being exclusively reserved for

eligible advocates, was entirely in tune with the

decisions of this Court in 1960, 1965, 1985 and

1998.

7 (2009) 8 SCC 273
8 (2002) 4 SCC 247
iii. The term “service” has been held to mean judicial

service in the case of Chandra Mohan (supra). The

wording of
Article 233(2)
is unequivocal in

distinguishing those who are already in service and

placing them in a separate category. It is, therefore,

evident that the said provision applies only to those

who are not in judicial service either of the Union or

of the State. Nowhere does it provide an eligibility

condition for the appointment of in-service

candidates merely because they had completed 7

years of practice as an advocate prior to their

appointment.

iv. Once an individual joins the stream of service,

he/she ceases to be an advocate. A person in

judicial service cannot simultaneously also be a

practicing advocate and is, therefore, not eligible for

being appointed as against the quota reserved for

advocates. The requirement of having seven years

of practice refers to a continuous state of affairs.

v. Clause (2) of
Article 233
of the Constitution does not

specifically provide for direct recruitment for those
in service. If direct recruitment is to be

contemplated, this Court would be reading into the

clause what is not mentioned therein. It would

result in an incongruous situation, wherein, while

qualifications for one source of direct recruitment

(i.e., practicing advocates) are prescribed, there is

no qualification for those who are in service. If direct

recruitment for in-service candidates is read into

clause (2) of
Article 233
, it would mean that any

Civil Judge (even with one day’s experience) can

seek appointment as district judge by way of direct

recruitment.

vi. In the case of Rameshwar Dayal (supra) Harbans

Singh and P.R. Sawhney (Respondents therein) did

not cease to be advocates at any time after 15th

August 1947 and continued to be advocates till they

were appointed as judges. Further, they had a

standing of seven years.

vii. With respect to the two sources of recruitment,

those in service are appointed in “consultation” with

the High Court and those from the bar are
appointed on the “recommendation” of the High

Court. The observations relied on by the Petitioners

in the lower part of paragraph 89 of Chandra

Mohan (supra) are only qua the question whether

the Governor can appoint from services other than

judicial services. It is in that context that two

sources of recruitment being “indicated” in clause

(2) is mentioned. This is so because when clause (2)

speaks of those who are not in service, there is

obviously a second source, i.e., of those who are in

service.

C. ISSUE FOR CONSIDERATION

9. The present batch of matters arises for consideration

in view of the interpretation given to
Article 233
of the

Constitution of India by a three-Judge Bench of this Court in

the case of Dheeraj Mor (supra). It will be pertinent to

reproduce the finding of the said three-Judge Bench, in

paragraph 45, which reads thus:

“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 practising
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 practising advocate having minimum 7
years’ experience.”

10. As such, what has been held by this Court, reads thus:

“Under
Article 233 (2)
, an advocate…
(i) Should be in practice in the immediate
past for seven years;
(ii) Must be in practice while applying on the
cut-off date; and
(iii) Should be in practice as an advocate on
the date of appointment.”

11. We are, therefore, called upon to consider the

correctness of the said finding.

D. PROVISION OF LAW AND PRECEDENTS

i. Text of
Article 233
of the Constitution
12.
Article 233
of the Constitution of India reads thus:

“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.”

13. Applying the first principle of interpretation i.e., the

rule of literal interpretation, we propose to analyse the

provisions contained in
Article 233
of the Constitution.

14. Clause (1) of
Article 233
of the Constitution deals with

the appointments of persons to be, and the posting and

promotion of, district judges in any State. It can thus be seen

that
Article 233(1)
of the Constitution is a provision providing

for appointments of persons as district judges in a State so

also for posting and promotions thereof. It further provides

that such appointments shall be made by the Governor of the

State concerned in consultation with the High Court

exercising jurisdiction in relation to such State.

15.
Article 233(2)
of the Constitution deals with the

eligibility of the persons for appointment to the post of district

judge. A plain reading of clause (2) of
Article 233
of the

Constitution would reveal that for appointment of a person to

the post of district judge, two streams are provided:
(i) a person not already in the service of the Union or

of the State; and

(ii) an advocate or a pleader if he has been an advocate

or a pleader for not less than seven years.

16. It can thus be seen that the words “a person not

already in the service of the Union or of the State” is the first

part of
Article 233(2)
of the Constitution. The second part is

“shall only be eligible to be appointed if he has been for not

less than seven years as an advocate or a pleader”.

17. The first clause of
Article 233
speaks of appointment,

posting and promotion of district judges in a State which shall

be made by the Government of the State in consultation with

its High Court. Clause (2) of
Article 233
does not restrict

appointment of persons employed in the Union or the State to

the post of district judges but enables, in addition advocates

or pleaders who have seven years’ practice, to be appointed as

district judges. The appointment or promotion and the

consequential posting has to be made under Clause (1) of

Article 233
, while Clause (2) provides for two sources of

appointment. The plain meaning coming out of the words

employed does not provide any restriction to judicial officers
from direct recruitment. On the other hand, it enables a

judicial officer to be appointed as a district judge by direct

recruitment even without the prescription of a period of

practice.

18. As already discussed hereinabove, this Court in the

case of Dheeraj Mor (supra) has held that clause (2) of
Article
of the Constitution does not provide for a qualification of

a person who is already in service of the Union or of the State.

It provides qualifications only insofar as an advocate or a

pleader is concerned. This Court, in the case of Dheeraj Mor

(supra), held that for a person to be eligible to be appointed as

district judge it is required that he has been for not less than

seven years an advocate or a pleader. The requirement of

recommendation of the High Court is common to both streams

i.e., in-service candidates and an advocate or a pleader. With

this analysis, we propose to deal with the judgments of this

Court which are concerned with the issues raised in the

present reference.
ii. Case Laws
a. Rameshwar Dayal v. The State of Punjab and
Others

19. The issue with regard to interpretation of
Article 233
of

the Constitution came up for consideration before a

Constitution Bench of this Court in the case of Rameshwar

Dayal (supra).

20. In the said case, a petition came to be filed before the

High Court of Punjab contending that five persons

(Respondents No. 2 to 6 therein) were not qualified to be

appointed as district judges under
Article 233
of the

Constitution at the time they were appointed by the State

Government. The writ petitioner before the High Court had

inter-alia sought for a writ of quo-warranto thereby seeking to

oust them from their office and for restraining them from

exercising the powers, duties and functions of the posts they

were holding. The writ petition was summarily dismissed by

the High Court on 21st September 1959. An application for a

certificate of fitness was rejected by the High Court. The writ

petitioner, therefore, prayed for a special leave from this Court

which was granted on 19th August 1960.
21. The appointment of the three respondents was

challenged on the ground that they did not have the requisite

experience of seven years’ practice in the High Court of Punjab

and that their experience before the Lahore High Court, prior

to partition, could not be taken into consideration for counting

the total experience. Insofar as the other two respondents are

concerned, it was contended that, one of them was working as

a Chairman, Jullundur Improvement Trust and the other one

was working as a Deputy Custodian, Evacuee Property on the

date of their appointment as District & Sessions Judges and

as such they were not qualified.

22. This Court recorded that the contentions raised on

behalf of the appellant therein ranged over a wide field,

however, the point for consideration is that whether clause (2)

of
Article 233
of the Constitution provides that a person not

already in the service of the Union or of the State shall only be

eligible to be appointed as a district judge if he (i) has been for

not less than seven years an advocate or a pleader and

(ii) is recommended by the High Court for appointment.

23. This Court further recorded the following arguments

which were raised on behalf of the appellant therein:
(i) That the expression “advocate or pleader” is an

expression of legal import and must be given its

generally accepted meaning at the time the

Constitution was adopted, and that the said

expression means an advocate or pleader entitled to

appear and plead for another in a Court in India but

does not include an advocate or pleader of a foreign

Court;

(ii) That the use of the present prefect tense “has been” in

clause (2) of
Article 233
of the Constitution require

that the person eligible for appointment must not only

have been an advocate or pleader before but must be

an advocate or pleader at the time he is appointed to

the office of district judge;

(iii) That the period of seven years referred to in clause (2)

of
Article 233
must be counted as the standing of the

advocate or pleader with reference to his right of

practice in a court in the territory of India i.e., any

right of practice in a court which was in India before

the partition of the country in 1947 but which is not

in India since partition, cannot be taken into
consideration for the purpose of counting the period of

seven years.

24. Answering the questions that arose for consideration

before it, the Constitution Bench observed thus:

“12. ……..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. ……..”

25. It can thus be seen that this Court has held that
Article
of the Constitution is a self-contained provision regarding

the appointment of district judges. It has been held that for 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) of
Article 233
of the Constitution, the Governor can appoint

such a person as a district judge in consultation with the

relevant High Court. It has also been held that for a person

not already in service, qualifications are laid down in clause

(2) of
Article 233
of the Constitution and all that is required is
that he/she should be an advocate or pleader of seven years’

standing.

26. It is thus clear that the source of appointment for both

an in-service candidate and a directly recruited candidate is

provided in clause (1) of
Article 233
of the Constitution. Clause

(2) of
Article 233
of the Constitution deals with the two aspects

viz., (i) qualification of an advocate or a pleader and (ii)

necessity of the recommendation by the High Court.

27. Insofar as the issue with regard to counting the

experience of an advocate or a pleader in the Lahore High

Court for counting the years of service as an advocate of High

Court of Punjab is concerned, we may observe that the same

is not relevant for adjudication of the present reference

inasmuch as it is not an issue before us.

28. This Court in that respect, however, in Rameshwar

Dayal (supra) made a reference to the consequences that

would follow if the interpretation canvassed on behalf of the

appellant therein was to be accepted. The Court recorded that

if the same is accepted, then for seven years beginning from

15th August 1947, no member of the Bar of the Punjab High

Court would be eligible for appointment as a district judge.
29. It will be relevant to refer to the following observations

of this Court:

“13. ……..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
Article 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-section (3) of
Section
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
Article 233
of the Constitution.”

30. It can thus be seen that with respect to the submission

advanced on behalf of the learned counsel for the appellant

therein, the Constitution Bench of this Court observed that it

is necessary to add that they must not be understood to have

decided that the expression “has been” must always mean

what the learned counsel for the appellant says it to mean. The

Constitution Bench further observed that they may be
seriously questioned if an organic constitution must be so

narrowly interpreted. However, this Court did not find it

necessary to pursue the matter in this regard since

Respondents No. 2, 4 and 5 were considered to be continuing

as 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 (which was inclusive of

their practice as an advocate in the Lahore High Court).

31. This Court in Rameshwar Dayal (supra) thereafter

considered the cases of Respondents No. 3 and 6 whose names

were not on the roll of advocates at the time they were

appointed as district judges. This Court observed thus:

“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 fulfiled the
requirements of
Article 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 clause (2) of

Article 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. ……….”
32. It is thus clear that in spite of the fact that

Respondents No. 3 and 6 were factually not on the roll of

advocates at the time of their appointment as district judges

and they were in service of the State, they were considered

eligible for appointment. This Court specifically observed that

Harbans Singh (Respondent No. 3) and P.R. Sawhney

(Respondent No. 6) were in service of the State at the time of

his appointment.

33. No doubt that the learned Senior Counsel/counsel

appearing for the Respondents before us in the present batch

of matters are right in contending that the Constitution Bench

in Rameshwar Dayal (supra) while interpreting
Section

8(2)(a)
of the Bar Councils Act, 1926 and Clause 6 of the High

Courts (Punjab) Order, 1947 held that the concerned

Respondents therein 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. However, the position is clear that both

Respondents No. 3 and 6 therein were in service of the State

at the time of their appointment. It is also not in dispute that
on 6th May 1949, Respondent No. 6 therein had got his licence

to practise as an advocate suspended.

b. Chandra Mohan v. State of Uttar Pradesh and
Others

34. The next judgment of this Court which requires our

consideration is that of Chandra Mohan (supra). Before we

proceed to consider the observations of the Constitution

Bench in the said case, a brief narration of the facts would be

necessary.

35. In the said case, in the year 1961-62, the Registrar of

the Allahabad High Court called for applications for

recruitment to ten vacancies in the Uttar Pradesh Higher

Judicial Service from Barristers, Advocates, Vakils and

Pleaders of more than seven years’ standing and from judicial

officers.

36. It will be relevant to refer to Rule 14 of the U.P. Higher

Judicial Service Rules which reads thus:

“Rule 14. Direct Recruitment.—
(1) Applications for direct recruitment to the service
shall be called for by the High 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 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.”

37. The Selection Committee constituted under the U.P.

Higher Judicial Service Rules, in accordance with the

provisions of the said Rules, selected six candidates from the

said applicants as suitable for appointment to the said service.

Respondents No. 2, 3 and 4 therein were advocates and

respondents No. 5, 6 and 7 therein were “judicial officers”.

Their appointments were challenged before the High Court on

the ground that the said candidates were not the members of

the judicial service. There was difference of opinion between

the judges of the Division Bench of the High Court. As such,

the matter came to be referred to a third Judge. The third

Judge agreed with the view that the recruitment from both the

sources was good. As such, the writ petitions were dismissed.

Pursuant to the certificate given by the High Court under
Articles 132(1)
and
133(1)(c)
of the Constitution, the appeal

came to be filed before this Court.

38. It is pertinent to note that the Constitution Bench of

this Court in Chandra Mohan (supra) observed that the

expression “judicial officers” is a euphemism for the members

of the Executive department who discharge some revenue and

magisterial duties.

39. Though several issues were raised for consideration

before the Constitution Bench in the case of Chandra Mohan

(supra), it would suffice to refer to the following contentions:

“ …(3) The Governor has no power to appoint district
judges from judicial officers as they are not members
of the judicial service. (4) The exclusion of the
members of the judicial service in the matter of direct
recruitment offends Arts. 14 and 16 of the
Constitution; or, alternatively, the exclusion of the
members of the judicial service in the matter of direct
recruitment to the post of district judges while
permitting “judicial officers” to be so recruited
offends the said articles…..”

40. It will be relevant to specifically refer to the third point

which has been considered by this Court in Chandra Mohan

(supra), which reads thus:

“The third point raised is one of far-reaching
importance. Can the Governor, after the
Constitution, directly appoint persons from a service
other than the judicial service as district judges in
consultation with the High Court? Can he appoint
“judicial officers” as district judges? The expression
“judicial officers” is a misleading one. It is common
case that they belong to the executive branch of the
Government, though they perform certain revenue
and magisterial functions.”

41. It can thus be seen that the main issue that fell for

consideration before this Court in the said case was as to

whether the judicial officers belonging to the executive branch

of the Government could be appointed as district judges?

42. It will also be relevant to the following observations of

this Court in the case of Chandra Mohan (supra):

“Before construing the said provisions, it should be
remembered that the fundamental rule of
interpretation is the same whether one construes the
provisions of the Constitution or an Act of
Parliament, namely, that the court will have to find
out the expressed intention from the words of the
Constitution or the Act, as the case may be. But, “if,
however, two constructions are possible then the
Court must adopt that which will ensure smooth and
harmonious working of the Constitution and eschew
the other which will lead to absurdity or give rise to
practical inconvenience or make well established
provisions of existing law nugatory.”

43. It can thus be seen that the Constitution Bench held

that though the fundamental rule of interpretation is the same

whether one construes the provisions of the Constitution or an
Act of Parliament, namely, that the Court will have to find out

the expressed intention from the words of the Constitution or

the Act. However, if two constructions are possible then the

Court must adopt that which will ensure smooth and

harmonious working of the Constitution and eschew the other

which will lead to absurdity or give rise to practical

inconvenience or make well established provisions of existing

law nugatory.

44. The Court in the said case thereafter examined the

entire scheme of
Articles 233
to 237 of the Constitution.

45. After examining the scheme, this Court observed thus:

“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 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]
46. It can thus be seen that this Court has held that the

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. This Court further held that there are two sources

of recruitment, namely, (i) service of the Union or of the State,

and (ii) members of the Bar. It has been held that 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. This

Court further held that in the case of appointments of persons

to the judicial service other than as district judges, the same

shall 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. It has been further held that

the High Court has control over all the district courts and

courts subordinate thereto, subject to certain prescribed

limitations.

47. This Court held that under
Article 236(b)
of the

Constitution, “judicial service” has been defined 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. This Court thereafter observed thus:

“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
Art. 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 world (sic) Constitution not have conferred a
blanket power on the Governor to appoint any person
from any service as a district judge.”
[Emphasis supplied]

48. This Court, therefore, after examining the scheme held

that having defined “judicial service” in exclusive terms and

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 could not have conferred

a blanket power on the Governor to appoint any person from

any service as a district judge. Subsequently, after referring to

the observations of this Court in the case of Rameshwar

Dayal (supra), this Court in the case of Chandra Mohan

(supra) observed thus:

“This passage is nothing more than a summary of the
relevant provisions. The question whether “the
service” in
Art. 233(2)
is any service of the Union or
of the State did not arise for consideration in that
case nor did the Court express any opinion thereon.
We, therefore, construe the expression “the service”
in d. (2) (sic) of
Art. 233
as the judicial service.”

49. It can thus be seen that the question whether “the

service” in
Article 233(2)
of the Constitution “is any service of

the Union or of the State” did not arise for consideration in

Rameshwar Dayal (supra). This Court, therefore, in

Chandra Mohan (supra) construed the expression “the

service” in clause (2) of
Article 233
of the Constitution as the

judicial service.

50. This Court, in the result, held 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.

51. A perusal of both these Constitution Bench judgments

would reveal that this Court does not hold that in case of direct

recruitment, it is only the advocates having practice of seven

years who could be appointed. Neither does either of the

judgment prohibit the judicial officers to be considered for

appointment by way of direct recruitment.

52. If we accept the construction as put forth by the

Respondents, then the first part of clause (2) of
Article 233
of

the Constitution i.e., “a person not already in service of the

Union or of the State” will be rendered redundant and

superfluous.

53. It is, however, more than a settled position of law that

it is presumed that the legislature has inserted each and every

word with an intention to give the provision an effective

meaning.

54. If the Constituent Assembly desired that when the

recruitment is made directly, only the advocates having seven

years of practice would be considered for appointment, it

would not have put the words “a person not already in service
of the Union or of the State” in the first part of clause (2) of

Article 233
of the Constitution. It is, therefore, to be presumed

that the Constituent Assembly has used the said words with a

purpose.

55. As already discussed hereinabove, the source of

appointment of district judges is clause (1) of
Article 233
of the

Constitution. Even if the selection of such a person is made

through promotions or through the mode of direct

recruitment, the appointment will have to be made by the

Governor of the concerned State in consultation with the High

Court. At the cost of repetition, we observe that the second

part of clause (2) of
Article 233
of the Constitution only enables

and provides for qualifications for advocates or pleaders who

are desirous of competing for the post of district judge.

c. State of Assam and Another v. Kuseswar Saikia
and Others

56. Coming next to the case of State of Assam and

Another v. Kuseswar Saikia and Others9.

57. In the said case, a writ petition was filed before the

High Court of Assam by Respondents No.1 to 3 therein seeking

9 (1969) 3 SCC 505
the issuance of a writ of quo-warranto challenging the

appointment of one Upendra Nath Rajkhowa, who was the

District and Sessions Judge, Darrang at Tazpur. The

Respondents No. 1 to 3 therein had been convicted by

Rajkhowa in a Sessions Trial, as a result they had challenged

their conviction inter-alia on the ground that Rajkhowa was

not entitled to hold the post of District and Sessions Judge.

The High Court held that the “promotion” of Rajkhowa by the

Governor as Additional District Judge by notification LJJ

74/66/65 dated 19th June 1967 purporting to act under

Article 233
of the Constitution was void because he could only

be promoted by the High Court acting under
Article 235
of the

Constitution. As a consequence, his further appointment as

District Judge by the Governor was also declared by the High

Court to be void. Aggrieved, the judgment of the High Court

was challenged before this Court.

58. While deciding the appeal, this Court, after referring to

clause (1) of
Article 233
of the Constitution, observed thus:

“4. …….The language seems to have given trouble to
the High Court. The High Court holds:
“(1) ‘appointment to be’ a District Judge is
to be made by the Governor in
consultation with the High Court vide

Article 233;
and

(2)
‘promotion’ of a District Judge and not
promotion ‘to be a District Judge’ is also to
be made by the Governor in consultation
with the High Court vide Article 233.”
The High Court gives the example of selection grade
posts in the cadre of District Judges which according
to it is a case of promotion of a District Judge.”

59. It will also be apt to refer to the following observations

of this Court in the case of Kuseswar Saikia (supra):

“6. 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. Further, promotion of District
Judges is a matter of control of the High Court.
What is said of District Judges here applies equally
to additional District Judges and Additional Sessions
Judges. Therefore when the Governor appointed
Rajkhowa an Additional District Judge, it could
either be an “appointment” or a promotion under

Article 233.
If it was an appointment it was
clearly a matter under
Article 233.
If the
notification be treated as “promotion” of
Rajkhowa from the junior service to the senior
service it was a “promotion” of a person to be a
District Judge which expression, as shown above,
includes an Additional District Judge. In our
opinion, it was the latter. Thus there is no doubt
that the appointment of Rajkhowa as Additional
District Judge by the Governor was a promotion and
was made under
Article 233.
It could not be made
under
Article 235
which deals with posts subordinate
to a District Judge including an Additional District
Judge and an Additional Sessions Judge. The High
Court was in error in holding that the appointment
of Rajkhowa to the position of an Additional District
Judge was invalid because the order was made by the
Governor instead of the High Court. The appointment
or promotion was perfectly valid and according to the
Constitution.”
[Emphasis supplied]

60. It is thus clear that this Court, in unequivocal terms,

held 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. This Court further observed that the District

Judges may be directly appointed or may be promoted from

the subordinate ranks of the judiciary. It has been observed

that
Article 233(1)
is intended to take care of both i.e., it

concerns with initial appointment as well as promotion of

persons to be either District Judges or any of the categories

included in it. This Court further held that the promotion of

District Judges is a matter under the control of the High Court.

It has been held that when the Governor appointed Rajkhowa
an Additional District Judge, it could either be an

“appointment” or a “promotion” under
Article 233
of the

Constitution. It has been held that if it was an appointment, it

was clearly a matter under
Article 233
of the Constitution. This

Court held that there is no doubt that the appointment of

Rajkhowa as Additional District Judge by the Governor was a

promotion and the same was made under
Article 233
of the

Constitution. This Court, therefore, held that the promotion

could not be made under
Article 235
which deals with posts

subordinate to a District Judge including an Additional

District Judge and an Additional Sessions Judge and that the

High Court was in error in holding that the appointment of

Rajkhowa to the position of an Additional District Judge was

invalid because the order was made by the Governor instead

of the High Court.

d. A. Panduranga Rao v. State of Andhra Pradesh
and Others

61. Next is the case of A. Panduranga Rao v. State of

Andhra Pradesh and Others10, where the Government of

Andhra Pradesh was requested by the High Court to take

10 (1975) 4 SCC 709
necessary steps for filling up six vacancies by notifying six

posts of District & Sessions Judge, Grade-II for direct

recruitment. The State Government informed the High Court

vide D.O letter dated 14th September 1972 that six vacancies

were being notified for direct recruitment and they were

actually notified in the Gazette on the very same date. The

advertisement was therefore published on 1st August 1972.

Totally 381 applications were received. Out of 381, 26

applications were found to be not in order and were therefore

rejected. The remaining 355 candidates were called by the

Selection Committee of the High Court for interview. The

appellant therein, A. Panduranga Rao, was one of the

candidates interviewed by the Selection Committee. After

completion of selection procedure, the High Court made its

recommendation in order of merit and Panduranga Rao was

5th out of the 6 names recommended. It, however, appears that

the recommendations were leaked and the Bar Association

City Civil Court, Hyderabad and the High Court Bar

Association passed certain resolutions/sent certain

memoranda to the Government and made some adverse

comments against some of the persons recommended by the
High Court. The State Government addressed a D.O. letter

dated 24th July 1973 to the High Court expressing concern

over the leakage of secret information but at the same time

invited comments from the High Court. It appears that there

was an exchange of communication and thereafter, the

Government appointed two persons from the list of the

candidates who were interviewed by the Selection Committee

excluding the appellant therein. Several writ petitions were

filed before the High Court challenging the said appointments.

A writ petition was also filed by the appellant challenging the

said appointments so also his non-selection. The writ petition

filed by the appellant before the High Court was dismissed. In

appeal, this Court, after considering the provisions of
Article
of the Constitution and the judgment in the case of

Chandra Mohan (supra), observed thus:

“8. A candidate for direct recruitment from the Bar
does not become eligible for appointment without the
recommendation of the High Court. He becomes
eligible only on such recommendation under clause
(2) of
Article 233.
The High Court in the judgment
under appeal felt some difficulty in appreciating the
meaning of the word “recommended”. But the literal
meaning given in the Concise Oxford Dictionary is
quite simple and apposite. It means “suggest as fit for
employment”. In case of appointment from the Bar it
is not open to the Government to choose a candidate
for appointment until and unless his name is
recommended by the High Court.”

62. Finally, this Court allowed the appeal and set aside the

judgment of the High Court. It can thus clearly be seen that

the question before the Court was as to whether the State

Government was empowered to make appointment of a

candidate not recommended by the High Court. This Court, in

unequivocal terms, held that a candidate becomes eligible for

appointment only on such recommendation under clause (2)

of
Article 233
of the Constitution. The writ petition filed by the

appellant before the High Court succeeded only to the extent

that the appointment of the candidates whose names were

recommended by the High Court was quashed.

63. Relying on the said observations, it is sought to be

submitted by the learned Senior Counsel/counsel appearing

on behalf of the Respondents that direct recruitment is

reserved for the members of the Bar.

64. It is, however, to be noted that in the said case of A.

Panduranga Rao (supra), the question as to whether a

candidate already in the judicial service of the Union or the
State was eligible for being considered for appointment as a

district judge by way of direct recruitment did not fall for

consideration.

e. Satya Narain Singh v. High Court of Judicature
at Allahabad and Others

65. A heavy reliance is also placed by the Respondents on

the judgment of this Court in the case of Satya Narain Singh

v. High Court of Judicature at Allahabad and Others11

rendered by a Bench of three learned Judges.

66. In the said case, the appellants therein, who were

members of the Uttar Pradesh Judicial Service, in response to

an advertisement by the High Court of Allahabad, applied to

be appointed by direct recruitment to the Uttar Pradesh Higher

Judicial Service. They claimed that each of them had

completed seven years of practice at the Bar even before their

appointment to the Uttar Pradesh Judicial Service and as

such, eligible to be appointed by direct recruitment to the

Higher Judicial Service. The writ petitions filed by them before

the High Court were dismissed. The Civil Appeal filed

thereagainst and some of the writ petitions filed before this

11 (1985) 1 SCC 225
Court were dismissed on 11th October 1984. However,

thereafter, three writ petitions were heard by a three-Judge

Bench which came to be dismissed by this Court on 27th

November 1984.

67. It will be relevant to refer to the arguments advanced

by both the sides, which read thus:

“2. The submission of Shri Lal Narain Sinha and Shri
K.K. Venugopal was that there was no constitutional
inhibition against members of any Subordinate
Judicial Service seeking to be appointed as District
Judges by direct recruitment provided they had
completed 7 years' practice at the bar. The
submission of the learned counsel was that members
of the Subordinate Judiciary, who had put in 7 years'
practice at the bar before joining the Subordinate
Judicial Service and who had gained experience as
Judicial Officers by joining the Subordinate Judicial
Service ought to be considered better fitted for
appointment as District Judges because of the
additional experience gained by them rather than be
penalised for that reason. The learned counsel
submitted that a construction of
Article 233
of the
Constitution which would render a member of the
Subordinate Judicial Service ineligible for
appointment to the Higher Judicial Service because
of the additional experience gained by him as a
Judicial Officer would be both unjust and
paradoxical. It was also suggested that it would be
extremely anomalous if a member of the Uttar
Pradesh Judicial Service who on the present
construction of
Article 233
is ineligible for
appointment as a District Judge by direct
recruitment, is nevertheless eligible to be appointed
as a Judge of the High Court by reason of
Article
217(2)(aa).
On the other hand Shri Gopal
Subramanium, learned counsel for the respondent,
urged that there was a clear demarcation in the
Constitution between two sources of recruitment
namely: (1) those who were in the service of a State
or Union, and (2) those who were not in such service.
He contended that the second clause of
Article 233

was attracted only to the second source and in
respect of candidates from that source the further
qualification of 7 years as an advocate or a pleader
was made obligatory for eligibility. According to Mr
Gopal Subramanium, a plain reading of both the
clauses of
Article 233
showed that while the second
clause of
Article 233
was applicable only to those who
were not already in service, the first clause was
applicable to those who were already in service. He
urged that any other construction would lead to
anomalous and absurd consequences such as a
junior member of the Subordinate Judicial Service
taking a leap, as it were, over senior members of the
Judicial Service with long records of meritorious
service. Both sides relied upon the decisions of this
Court in Rameshwar Dayal v. State of Punjab [AIR
1961 SC 816 : (1961) 2 SCR 874 : (1961) 2 SCJ 285]
and Chandra Mohan v. State of Uttar Pradesh [AIR
1966 SC 1987 : (1967) 1 SCR 77 : (1967) 1 LLJ 412]”

68. Since a heavy reliance is placed on behalf of the

Respondents on the said judgment, it will be relevant to refer

to the entire reasoning as recorded in the said judgment,

which reads 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. The dichotomy is
clearly brought out by S.K. Das, J. in Rameshwar
Dayal v. State of Punjab [AIR 1961 SC 816 : (1961) 2
SCR 874 : (1961) 2 SCJ 285] where he observes:
“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.”
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”
4. In Chandra Mohan v. State of Uttar Pradesh [AIR
1966 SC 1987 : (1967) 1 SCR 77 : (1967) 1 LLJ 412]
Subba Rao, C.J. after referring to
Articles 233
, 234
,
, 236
and
stated:
“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 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)
Subba Rao, C.J. then proceeded to consider whether
the Government could appoint as District Judges
persons from services other than the Judicial
Service. After pointing out that
Article 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 clause (2) thereof. Under
clause (2) of
Article 233
two sources are
given, namely, (i) persons in the service of
the Union or of the State, and (ii) advocate
or pleader.”
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.”
69. With due respect, we may state that the said judgment

does not lay down the correct position of law. The finding of

this Court in the said case that the second clause of
Article
is confined in its application to persons “not already in the

service of the Union or of the State” is, in our view, erroneous.

The finding that there is a clear distinction between the two

sources of recruitment and the dichotomy is maintained, in

our view, is not correct. Further, the finding that the two

streams are separate until they come together by appointment

and the “same ship cannot sail both the streams

simultaneously” does not lay down the correct law.

70. No doubt that this Court in Satya Narain Singh

(supra) correctly held that in Rameshwar Dayal (supra), this

Court had expressed the view that it was in the case of

recruitment from the Bar, as distinguished from judicial

service, that the requirements of clause (2) of
Article 233
of the

Constitution of having seven years’ practice had to be

fulfilled. However, it is pertinent to note that though this Court

notices that no such qualification is provided in the case of

candidates who are members of the judicial services, it is not

clear from the judgment as to whether the Court finds that
those who were appointed from the service in Rameshwar

Dayal (supra) was wrong or not. However, from the judgment

in Rameshwar Dayal (supra), it is obviously clear that the

Court notices that Harbans Singh and P.R. Sawhney

(Respondents therein) were appointed when they were in

service of the State.

71. This Court, in Satya Narain Singh (supra), after

referring to Chandra Mohan (supra), stated that in Chandra

Mohan (supra), the Court observed that the expression “the

service” in
Article 233(2)
of the Constitution could only mean

the judicial service. However, it further held that this Court in

Chandra Mohan (supra) 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
Articles 14
and
of the

Constitution.

72. We find that the abovesaid observations made in Satya

Narain Singh (supra) that if a person who is already in service

is appointed as a district judge on the recommendation of the

High Court, thereby overlooking the claims of all other seniors
in the subordinate judiciary, would violate
Articles 14
and
of the Constitution is not correct. On the contrary we find that

it will enable the more meritorious candidates amongst the

judicial officers to compete with the advocates and only if they

are found to be more meritorious, will they be selected and

appointed. Not only that but
Articles 14
and
of the

Constitution would require that an equal treatment be given to

all eligible candidates. In fact, the observations which amount

to creating a “quota” for advocates, having practice of seven

years, in the matter of direct recruitment for the post of district

judges would violate the provisions of
Articles 14
and
of the

Constitution.

73. We, therefore, find that barring a person, who is

otherwise eligible but at the time of advertisement, is in

judicial service of the Union or of the State and is prevented

from competing with the candidates who are advocates having

practice of seven years, for appointment(s) in the stream of

direct recruitment would result in denial of an equal

treatment. When the appointments are made solely on the

basis of merit, then the claim of meritorious judicial officers
cannot be overlooked. It is only merit and merit alone that

shall matter.

f. Sushma Suri v. Govt. of National Capital
Territory of Delhi and Another

74. The learned Senior Counsel/counsel appearing for the

Respondents also placed reliance on the case of Sushma Suri

v. Govt. of National Capital Territory of Delhi and

Another12. In the said case, the appellant therein who was

appointed as Assistant Government Advocate and thereafter

was promoted to the post of Additional Government Advocate

in this Court, had applied, in response to the advertisement

issued for recruitment to the Delhi Higher Judicial Service.

When she was not called for the interview, she filed a writ

petition before the High Court, which was dismissed. While

considering the provision contained in
Article 233
of the

Constitution, this Court observed thus:

“3. …Obviously, this Rule has been framed to be in
conformity with
Article 233
of the Constitution.

Article 233(1)
thereof provides for appointments of
persons who are already in service while
Article
233(2)
provides that a person not already in service
is eligible for appointment if he has been for not less
than seven years an advocate or a pleader and is
recommended for the purpose by the High Court.
Referring to the expression “service” in
Article 233(2)

12 (1999) 1
SCC 330
it has been held by this Court in Chandra
Mohan v. State of U.P. [AIR 1966 SC 1987 : (1967) 1
LLJ 412] and Satya Narain Singh v. High Court of
Judicature at Allahabad [(1985) 1 SCC 225 : 1985
SCC (L&S) 196 : AIR 1985 SC 308] that it means
“judicial service”. However, it is not the contention
either before the High Court or before us that the
appellant is in judicial service. On the other hand the
contention is that she has more than seven years’
experience as an advocate and, therefore, is fully
eligible to be appointed to the Higher Judicial Service
and the High Court was not justified in not
considering her case for appointment. Hence we have
to examine the only question whether the appellant
is an “advocate” for the purpose of
Article 233(2)
of
the Constitution and “from the Bar” as envisaged in
Rule 7 of the Rules.”

75. For the reasons that are recorded by us hereinabove,

we find that the finding in the case of Sushma Suri (supra)

that
Article 233(1)
of the Constitution provides for

appointments of persons who are already in service, while

Article 233(2)
of the Constitution provides that a person not

already in service is eligible for appointment if he has been for

not less than seven years an advocate or a pleader and is

recommended for the purpose by the High Court, is again

contrary to the provisions of
Article 233
of the Constitution.

76. This Court, in the said case, observed thus:

“6. If a person on being enrolled as an advocate
ceases to practise law and takes up an employment,
such a person can by no stretch of imagination be
termed as an advocate. However, if a person who is
on the rolls of any Bar Council is engaged either by
employment or otherwise of the Union or the State or
any corporate body or person practises before a court
as an advocate for and on behalf of such
Government, corporation or authority or person, the
question is whether such a person also answers the
description of an advocate under the Act. That is the
precise question arising for our consideration in this
case.”

77. It can thus be seen that this Court in the case of

Sushma Suri (supra) has held that if a person on being

enrolled as an advocate ceases to practise law and takes up an

employment, then such a person can by no stretch of

imagination be termed as an “advocate”. This Court further

posed a question for its consideration that if a person who is

on the roll of any Bar Council is engaged either by employment

or otherwise of the Union or the State or a body corporate or

person practises before a Court as an advocate for and on

behalf of such Government, corporation or authority or

person, whether such a person also answers the description of

an advocate under the Act.

78. To answer the said question, this Court considered the

provisions under the
Advocates Act, 1961
and observed that

for the purpose of the
Advocates Act
and the rules framed

thereunder, the Law Officer (Public Prosecutor or Government
Counsel) will continue to be an advocate. It was observed that

the intention of the relevant rules is that a candidate eligible

for appointment to Higher Judicial Service should be a person

who regularly practices before the Court or tribunal, appearing

for a client.

79. This Court, in the said case, thereafter observed thus:

“9. In Oma Shanker Sharma case [ CWP No. 1961 of
1987] the Delhi High Court approached the matter in
too pedantic a manner losing sight of the object of
recruitment under
Article 233(2)
of the Constitution.
Whenever any recruitment is conducted to fill up any
post, the area of recruitment must be as broad-based
as the Rules permit. To restrict it to advocates who
are not engaged in the manner stated by us earlier in
this order is too narrow a view, for the object of
recruitment is to get persons of necessary
qualification, experience and knowledge of life. A
Government Counsel may be a Public Prosecutor or
Government Advocate or a Government Pleader. He
too gets experience in handling various types of cases
apart from dealing with the officers of the
Government. Experience gained by such persons
who fall in this description cannot be stated to be
irrelevant nor detrimental to selection to the posts of
the Higher Judicial Service. The expression
“members of the Bar” in the relevant Rule would only
mean that particular class of persons who are
actually practising in courts of law as pleaders or
advocates. In a very general sense an advocate is a
person who acts or pleads for another in a court and
if a Public Prosecutor or a Government Counsel is on
the rolls of the Bar Council and is entitled to practise
under the Act, he answers the description of an
advocate.”
80. It can thus be seen that this Court has clearly held that

the object of the recruitment under
Article 233
of the

Constitution should not be approached in a “pedantic

manner”. It has been observed that whenever a recruitment is

conducted, the area of recruitment must be “as broad-based

as the rules permit”. It has been held that the object of

recruitment is to get persons of necessary qualification,

experience and knowledge of life. This Court held that a

Government Counsel may be a Public Prosecutor or

Government Advocate or a Government Pleader who too gets

experience in handling various types of cases apart from

dealing with the officers of the Government. It has been held

that experience gained by such persons who fall in this

description cannot be stated to be irrelevant nor detrimental

in selection to the posts of the Higher Judicial Service. This

Court observed that the expression “members of the Bar” in

the relevant rule would only mean that particular class of

persons who are actually practising in courts of law as

pleaders or advocates. This Court held that if a Public

Prosecutor or a Government Counsel is on the roll of the Bar

Council and is entitled to practise under the Act, he answers
the description of an advocate. This Court clearly held that an

advocate employed by the Government or a body corporate as

its law officer, even on terms of payment of salary would not

cease to be an advocate in terms of Rule 49 of the Bar Council

of India Rules.

81. It can thus be seen that the observations of this Court

in Sushma Suri (supra) rather than fully supporting the

contention of the Respondents, to some extent, support the

contentions of the Petitioners. This Court in the said case has

emphasized that the object of recruitment is to get persons of

necessary qualification, experience and knowledge of life. It

has been observed that the Government Advocate gets

experience in handling various types of cases apart from

dealing with the officers of the Government. It has been held

that the experience gained by such persons who fall in this

description cannot be stated to be irrelevant nor detrimental

to selection to the posts of the Higher Judicial Service.

g. Deepak Aggarwal v. Keshav Kaushik and
Others

82. Again, in the case of Deepak Aggarwal (supra), relied

upon by the learned Senior Counsel/Counsel for the
Respondents, the five appellants therein who were working as

Assistant District Attorney, Deputy Advocate General and

Public Prosecutor, etc., were selected by direct recruitment to

the post of Additional District & Sessions Judge in the

Haryana Superior Judicial Service. The High Court had

quashed their appointment on the ground that they did not

have the requisite criteria to qualify for the recruitment as

contemplated in
Article 233
of the Constitution. This Court,

after considering the Constitution Bench judgments in the

cases of Rameshwar Dayal (supra) and Chandra Mohan

(supra) and other judgments dealing with the similar issue,

observed thus:

“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 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 [(1999) 1 SCC
330 : 1999 SCC (L&S) 208], 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.
A Public Prosecutor or a Government Counsel on the
rolls of the State Bar Council and entitled to practise
under the 1961 Act was held to be covered by the
expression “advocate” under
Article 233(2).
We
respectfully agree.”

83. It can thus be seen that the meaning given to the term

“advocate or pleader” in the case of Sushma Suri (supra) has

been affirmed by this Court in the case of Deepak Aggarwal

(supra). This Court further observed thus:

“99. …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 the negative, he ceases to be an advocate.”

84. It can thus be seen that this Court has reiterated the

position laid down in the case of Sushma Suri (supra) that

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.

This Court held that despite employment he continues to be

an advocate.
85. Therefore, the question that is required to be

considered by us is if the purpose of recruitment is to get

persons of necessary qualification, experience and knowledge

of life, then as to whether the judicial officer who is in judicial

service could be denied an opportunity to be recruited in the

posts meant to be filled by way of direct recruitment. In that

respect, we are of the considered view that it cannot be denied

that the experience a judicial officer gets by working as a judge

can only work to the betterment of the district judiciary. The

question that we would have to therefore consider in present

case is as to whether such experienced persons having rich

judicial experience can be permitted to participate in the

process of direct recruitment for the post of district judge.

h. Vijay Kumar Mishra and Another v. High Court
of Judicature at Patna

86. In Vijay Kumar Mishra and Another v. High Court

of Judicature at Patna13, a case specifically relied upon by

the learned Senior Counsel appearing on behalf of the

Petitioners, the appellants therein had appeared in the

recruitment for the Subordinate Judicial Service of Bihar as

13 (2016) 9 SCC 313
well as District Judge Entry Level (Direct from Bar). It will be

relevant to note that in the said case the process for both the

recruitments was held simultaneously. The writ petitioners

before the Patna High Court appeared in the preliminary and

mains examination of District Judge Entry Level (Direct from

Bar). In the meantime, they were declared qualified for the

Subordinate Judicial Service in 28th Batch and accordingly

joined the Subordinate Judicial Service of the State of Bihar

in August 2015. Subsequently, the result of the Mains

Examination of the District Judge Entry Level (Direct from

Bar) was published in January 2016. Both the writ petitioners

were declared qualified in the Mains Examination. The High

Court had published schedule for interview and issued call

letters to both of them. One of the conditions mentioned

therein was furnishing of a ‘No Objection Certificate of the

Employer’. Therefore, the writ petitioners filed a representation

before the Registrar General, Patna High Court seeking to

appear in the said interview. The request was declined on the

ground that they were already in the State Judicial

Subordinate Service. It was further informed to the writ

petitioners that if they desire to appear in the interview, they
may choose to resign before participating in the interview and

that the said resignation, once tendered, would not be

permitted to be withdrawn. The rejection of their

representation was the subject matter of a challenge before the

High Court. The High Court rejected the writ application.

Hence, the writ petitioners came before this Court.

87. It will be gainful to refer to the following observations

in the judgment delivered by Jasti Chelameshwar, J.:

“5. For any youngster, the choice must appear very
cruel, to give up the existing employment for the
uncertain possibility of securing a better
employment. If the appellant accepted the advice of
the High Court but eventually failed to get selected
and appointed as a District Judge, he might have to
regret his choice for the rest of his life. Unless
providence comes to the help of the appellant to
secure better employment elsewhere or become a
successful lawyer, if he chooses to practise
thereafter, the choice is bound to ruin the appellant.
The High Court we are sure did not intend any such
unwholesome consequences. The advice emanated
from the High Court's understanding of the purport
of
Article 233(2).
Our assay is whether the High
Court's understanding is right.
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.”

88. It can thus be seen that this Court once again went on

to interpret
Article 233(2)
to mean that only a person not

already in the service of either the Union or the State shall be

eligible to be appointed as District Judge. The Court observed

that the said Article is couched in “negative language” creating

a bar for the appointment of certain class of persons described

therein. It was further observed that it does not prescribe any

qualification but only prescribes disqualification. With due

respect, we may observe that the said observations of this

Court are contrary to the law laid down by this Court in the

Constitution Bench judgment of Chandra Mohan (supra).

89. The Court in the case of Vijay Kumar Mishra (supra)

goes on the premise that there is a distinction between

selection and appointment. It was held by this Court that every

person who is successful in the selection process undertaken

by the State for the purpose of filling up of certain posts under

it, does not acquire any right to be appointed automatically.

This Court noted that
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.

90. After referring to the judgments of this Court in the

cases of Satya Narain Singh (supra) and Deepak Aggarwal

(supra), the two-Judge Bench in the said case observed that

the question as to at what stage the bar comes into operation

was not an issue before the Court nor did it go into that

question. The Court, therefore, allowed the appellants therein

to participate in the selection process without insisting upon

their resignation from their current employment. The Court

further directed that if the appellants therein were found

suitable, it was open to them to resign from the current

employment and opt for the post of District Judge, if they so

desire.

91. Abhay Manohar Sapre, J., in his separate concurring

judgment in the case of Vijay Kumar Mishra (supra) observed

thus:

“22. This submission though looks attractive, is not
acceptable. Neither the text of Article and nor the
words occurring in
Article 233(2)
suggest such
interpretation. Indeed, if his argument is accepted, it
would be against the spirit of
Article 233(2).
My
learned Brother for rejecting this argument has
narrated the consequences, which are likely to arise
in the event of accepting such argument and I agree
with what he has narrated.
23. In my view, there lies a subtle distinction
between the words “selection” and “appointment” in
service jurisprudence. (See Prafulla Kumar
Swain v. Prakash Chandra Misra [Prafulla Kumar
Swain v. Prakash Chandra Misra, 1993 Supp (3) SCC
181 : 1993 SCC (L&S) 960 : (1993) 25 ATC 242] .)
When the Framers of the Constitution have used the
word “appointed” in clause (2) of
Article 233
for
determining the eligibility of a person with reference
to his service then it is not possible to read the word
“selection” or “recruitment” in its place. In other
words, the word “appointed” cannot be read to
include the word “selection”, “recruitment” or
“recruitment process”.
24. 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 the 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 fulfils all conditions
prescribed in the advertisement by taking recourse to
clause (2) of
Article 233
would, in my opinion,
amount to violating his right guaranteed under

Articles 14
and
of the Constitution of India.
25. 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 statute 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 recognised rule of interpretation of statutes
that expressions used therein should ordinarily be
understood in the sense in which they best
harmonise with the object of the statute and which
effectuate the object of the legislature.
(See Interpretation of Statutes, 12th Edn., pp. 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.”

i. Dheeraj Mor v. High Court of Delhi

92. That brings us to the decision of this Court in the case

of Dheeraj Mor v. High Court of Delhi14 wherein a two-Judge

Bench found that in view of the various decisions of this Court,

the major issue that arises for its consideration is as to

whether the eligibility for appointment as district judge is to

be seen at the time of appointment or at the time of application

or both. The matter was, therefore, directed to be placed before

the then Chief Justice of India so as to constitute a larger

Bench of this Court. On reference, this Court decided the

matter on 19th February 2020 in Dheeraj Mor (supra).

93. The learned three-Judge Bench in the said case, upon

interpretation of
Article 233
of the Constitution, held that the

only mode provided for the appointment of in-service

candidates to the post of district judge was by way of

promotion. According to the three learned Judges, this

14 (2018) 4 SCC 619
interpretation has already been laid down by the Constitution

Bench in the case of Chandra Mohan (supra).

94. It will be relevant to refer to paragraph 19 of Dheeraj

Mor (supra) which reads thus:

“19. It is apparent from the decision in Chandra
Mohan v. State of U.P. [Chandra Mohan v. State of
U.P., (1967) 1 SCR 77 : AIR 1966 SC 1987] that this
Court has laid down that concerning District Judges
recruited directly from the Bar, the 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 [Chandra Mohan v. State of
U.P., (1967) 1 SCR 77 : AIR 1966 SC 1987] , the
position is made clear. In Chandra Mohan [Chandra
Mohan v. State of U.P., (1967) 1 SCR 77 : AIR 1966
SC 1987] the Court held that only advocates can be
appointed as direct recruits, and inter alia 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.”

95. It can thus be seen that the three learned Judges held

that in Chandra Mohan (supra), this Court has laid down that

insofar as district judges recruited directly from the Bar are

concerned, the Governor can appoint only advocates

recommended by the High Court and Rule 14 therein which
provided for the judicial officers to be appointed as direct

recruits was struck down by this Court as ultra vires. The

Court noted that the position was squarely against the

submissions espoused on behalf of the in-service candidates.

The Court further reiterated that it was only the advocates who

could be appointed as district judges by way of direct

recruitment. The three-Judge Bench also held that the law laid

down in the case of Rameshwar Dayal (supra) was also

against the submissions raised on behalf of the in-service

candidates.

96. This Court in the said case, thereafter, referring to the

judgments in Satya Narain Singh (supra), Deepak

Aggarwal (supra) and Vijay Kumar Mishra (supra), held that

an in-service candidate cannot apply against the posts

reserved for advocates/pleaders as he has to be in continuous

practice in the past and at the time when he has applied and

is appointed. This Court, therefore, held that the law laid down

in Vijay Kumar Mishra (supra) was not correct.

97. An argument was placed before this Court in Dheeraj

Mor (supra) with regard to denial of equal opportunity. While

rejecting the said argument, the Court observed thus:
“43.…..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 v. Bal Mukund Sah [State of Bihar v. Bal
Mukund Sah, (2000) 4 SCC 640 : 2000 SCC (L&S)
489] , 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, 1948 and the International Covenant on Civil
and Political Rights and International Covenant on
Economic, Social and Cultural Rights.”

98. In conclusion, this Court observed thus:

“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 practising
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 practising advocate having minimum 7
years' experience.
46. In view of the aforesaid interpretation of
Article
, 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.”

99. The answers to the reference in the main judgment of

Arun Mishra, J. is as under:

“47. We answer the reference as under:
47.1. The members in the judicial service of the State
can be appointed as District Judges by way of
promotion or limited competitive examination.
47.2. 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.

47.3. Under
Article 232(2) (sic)
, 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.
47.4. 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.
47.5. 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
of the Constitution of India.
47.6. The decision in Vijay Kumar Mishra [Vijay
Kumar Mishra v. High Court of Patna, (2016) 9 SCC
313 : (2016) 2 SCC (L&S) 606] 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.”

100. Thereafter, in the judgment delivered by Arun Mishra,

J. for himself and Vineet Saran, J., in paragraph 48, the Court

held that wherever such in-service candidates have been

appointed by way of direct recruitment against the posts

reserved for Bar, they shall be discontinued and be reverted to

their original post.

101. In his separate concurring judgment, S. Ravindra

Bhat, J., after correctly narrating as to what was laid down by

the Constitution Bench in Rameshwar Dayal (supra),

distinguished it on the reasoning that this Court had no

occasion to deal with any rules framed under Article 233/234

in relation to the appointment for the post of district judge.

102. Bhat, J., further correctly referred to the ratio of

Chandra Mohan (supra) as under:

“67. 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.”

103. It can thus be seen that Bhat, J., noticed that in

Chandra Mohan (supra), the Constitution Bench held that

only those in service as judges or members of judicial services

could be considered for appointment. However, after noticing

the same and noticing the judgments in the case of Satya

Narain (supra) and Deepak Aggarwal (supra), he observed

thus:

“71. 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 practice) 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.”

104. In conclusion, Bhat, J., considered Rameshwar Dayal

(supra) and Chandra Mohan (supra) in the following words:

“75. It is thus evident, that Rameshwar
Dayal [Rameshwar Dayal v. State of Punjab, (1961) 2
SCR 874 : AIR 1961 SC 816] 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 Advocates
concerned, who were appointed as District Judges,
was for a considerable period, in pre-Partition India,
in the erstwhile undivided Punjab. Chandra
Mohan [Chandra Mohan v. State of U.P., (1967) 1 SCR
77 : AIR 1966 SC 1987] , 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 [Chandra Mohan v. State of U.P.,
(1967) 1 SCR 77 : AIR 1966 SC 1987] , 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)
….”

105. Bhat J., with due respect, went wrong while holding

that Chandra Mohan (supra) invalidated Rule 14 therein,

rendering both executive officers under the State and persons

holding judicial posts ineligible to apply under
Article 233(2).

In fact, Chandra Mohan (supra) only held the rules

empowering recruitment of District Judges from “judicial

officers” to be unconstitutional. “Judicial Officers” as noticed

in the Rule was held in the decision itself to be misleading
since: “it is common case that they belong to the executive

branch of the Government, though they perform certain revenue

and magisterial functions” (sic). It was held in Chandra Mohan

(supra):

“……. But
Art. 233(1)
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………”

106. The reference is answered by Bhat, J., in the following

terms:

“76. A close reading of
Article 233
, other provisions
of the Constitution, and the judgments discussed
would show the following:
76.1. 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)].

76.2. While so appointing the Governor is bound to
consult the High Court [
Article 233(1) :
Chandra
Mohan [Chandra Mohan v. State of U.P., (1967) 1 SCR
77 : AIR 1966 SC 1987] and Chandramouleshwar
Prasad v. High Court of Patna [Chandramouleshwar
Prasad v. High Court of Patna, (1969) 3 SCC 56 :
(1970) 2 SCR 666.
76.3.
Article 233(1)
cannot be construed as a source
of appointment; it merely delineates as to who is the
appointing authority.
76.4. 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 Mohd. [State of
Assam v. Ranga Mohd., (1967) 1 SCR 454 : AIR 1967
SC 903] ,
76.5.
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' practice
could be appointed as a District Judge, under
Article
233(2).

76.6. 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'
practice 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
practice 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.”

107. While rejecting the argument with regard to denial of

equal opportunity to the in-service candidates, Bhat J.,

observed thus:

“82. 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.
83. 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 Mishra,
J. has done—it is evident that a lion's 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
State concerned. The decision of this Court in All
India Judges' Assn. v. Union of India [All India Judges
Assn. v. Union of India, (2010) 15 SCC 170 : (2013) 1
SCC (L&S) 548] , reduced the limited departmental
examination quota (out of turn promotion quota)
from 25% to 10% which took effect from 1-1-2011.
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.”

108. Bhat, J., went to the extent of saying that if rules of

any State permit judicial officers to compete against the

advocates’ quota for appointment as district judges, they are

susceptible to challenge. He observed that enabling 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. He held that this

will be contrary to the mandate of
Article 233(2).
Bhat, J.,

therefore, held that Vijay Kumar Mishra (supra), to the extent
that it is contrary to Ashok Kumar Sharma and Others v.

Chander Shekhar and Another,15 as regards participation

in the selection process of candidates who are members of the

judicial service, for appointment to the post of district judge,

from amongst the quota earmarked for advocates with seven

years’ practice, was wrongly decided and in the result

overruled the same.

j. All India Judges Association and Others v.
Union of India and Others

109. Reliance was also placed by the learned Senior

Counsel/counsel appearing on behalf of the Respondents on

the following observations made by three learned Judges of

this Court in the case of All India Judges Association and

Others v. Union of India and Others16.

“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

15 (1997) 4 SCC 18
16 (2002) 4 SCC 247
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 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
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 [R.K. Sabharwal v. State of Punjab, (1995) 2
SCC 745 : 1995 SCC (L&S) 548] . 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 [R.K.
Sabharwal v. State of Punjab, (1995) 2 SCC 745 :
1995 SCC (L&S) 548] 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.”
110. In addition to the reliance placed on the judgment of

this Court in the case of All India Judges Association

(supra), it is submitted by the learned Senior Counsel/counsel

appearing on behalf of the Respondents that understanding

the provisions of
Article 233
of the Constitution in the correct

perspective, the First National Judicial Pay Commission under

the Chairmanship of Justice K. Jagannatha Shetty, a former

Judge of this Court,17 itself recommended bringing out an

amendment to
Article 233(2)
so as to permit in-service

candidates to compete in the posts reserved for direct

recruitment. On the contrary by also placing reliance on the

Shetty Commission, the correctness of the aforesaid view in

Dheeraj Mor (supra) is sought to be reconsidered by the

learned Senior Counsel appearing on behalf of the Petitioners.

111. It is also the case of the Respondents that the

judgments of the Constitution Bench of this Court in the cases

of Rameshwsar Dayal (supra) and Chandra Mohan (supra)

have been correctly considered by this Court in various

subsequent decisions including in the cases of Satya Narain

(supra), Deepak Aggarwal (supra) and Ashok Kumar

17 Hereinafter, “Shetty Commission”.
Sharma (supra). It is further submitted that the law laid down

in Dheeraj Mor (supra) only reiterates the earlier position as

laid down in various judgments of this Court. It is, therefore,

submitted that this position is in hold for decades together and

no interference would be warranted for the same.

E. CONSIDERATION

112. We now propose to deal with the rival submissions.

i. Textual and Contextual Interpretation

113. We have already referred to the principles of plain and

literal interpretation hereinabove.

114. We may also gainfully refer to the following

observations of this Court in the case of Reserve Bank of

India v. Peerless General Finance and Investment Co. Ltd.

and Others18:

“33. Interpretation must depend on the text and the
context. They are the bases of interpretation. One
may well say if the text is the texture, context is what
gives the colour. Neither can be ignored. Both are
important. That interpretation is best which makes
the textual interpretation match the contextual. A
statute is best interpreted when we know why it was
enacted. With this knowledge, the statute must be
read, first as a whole and then section by section,
clause by clause, phrase by phrase and word by
word. If a statute is looked at, in the context of its
enactment, with the glasses of the statute-maker,

18 (1987) 1 SCC 424
provided by such context, its scheme, the sections,
clauses, phrases and words may take colour and
appear different than when the statute is looked at
without the glasses provided by the context. With
these glasses we must look at the Act as a whole and
discover what each section, each clause, each phrase
and each word is meant and designed to say as to fit
into the scheme of the entire Act. No part of a statute
and no word of a statute can be construed in
isolation. Statutes have to be construed so that every
word has a place and everything is in its place. It is
by looking at the definition as a whole in the setting
of the entire Act and by reference to what preceded
the enactment and the reasonsfor it that the Court
construed the expression “Prize Chit”
in Srinivasa [(1980) 4 SCC 507 : (1981) 1 SCR 801 :
51 Com Cas 464] and we find no reason to depart
from the Court's construction.”

115. It can thus be seen that the interpretation which

makes the textual interpretation match the contextual one has

to be preferred. A statute is best interpreted when the reason

and purpose for its enactment is ascertained. The statute must

be read first as a whole, and then section by section, clause by

clause, phrase by phrase and word by word. It has been held

that if the statute is looked at in the context of its enactment

with the glasses of the statute-maker, provided by such

context, its scheme, the sections, clauses, phrases and words

may take colour and appear different than when the statute is

looked at without the glasses provided by the context. With
these “glasses” we must look at the Act as a whole and

discover what each section, each clause, each phrase and each

word means and what it is designed to say as to fit into the

scheme of the entire Act. No part of a statute and no word of a

statute can be construed in isolation.

116. The law laid down by this Court in Peerless General

Finance and Investment Co. Ltd. (supra) has been followed

in a catena of judgments including in the Constitution Bench

judgment of this Court in the case of Vivek Narayan Sharma

and Others (Demonetisation Case – 5 J) v. Union of India

and Others19, of which one of us (Gavai, J., as he then was)

was a member.

ii. Scheme of
Article 233
of the Constitution

117. In that view of the matter, we will have to examine the

entire scheme of
Article 233
of the Constitution. We will also

have to give meaning to each and every word used in the said

provision.

118. As already discussed hereinabove, all provisions

relating to appointment of a person to be a district judge and

the posting and promotion thereof are contained in clause (1)

19 (2023) 3 SCC 1
of
Article 233
of the Constitution. Such appointments have to

be made by the Governor in consultation with the High Court

exercising jurisdiction in relation to such a State. As such, the

contention as sought to be placed on behalf of the

Respondents that clause (1) of
Article 233
of the Constitution

deals with promotions and the only manner in which in-service

candidates could be appointed as district judges is by way of

promotion and further that the appointments made under

clause (2) of
Article 233
of the Constitution have to be

restricted only to the advocates or a pleader having seven

years’ practice in our view, is not in consonance with the

textual and contextual meaning of
Article 233
of the

Constitution.

119. As already discussed hereinabove, clause (1) of
Article
of the Constitution deals with all the aspects regarding

appointment to be made, promotion and posting to the post of

district judge. Further, as held by the Constitution Bench of

this Court in the case of Kuseswar Saikia (supra), even

appointment on promotion of a subordinate judicial officer

would be traceable to clause (1) of
Article 233
of the

Constitution.
120. Not only that but as held by this Court in the case of

Rameshwar Dayal (supra), clause (2) of
Article 233
of the

Constitution deals with the qualification of a person to be

appointed as district judge. However, it is held by this Court

in the case of Rameshwar Dayal (supra), that clause (2) of

Article 233
does not provide a qualification for a person who is

already in service of the Union or of the State. As clarified in

the case of Chandra Mohan (supra), such a service of the

Union or the State has to be only judicial service.

121. Though clause (2) of
Article 233
of the Constitution

begins in a negative manner, if the interpretation as sought to

be given in the judgments of this Court in the cases of Satya

Narain Singh (supra) till Dheeraj Mor (supra) is to be

accepted, it will render the first part of clause (2) of
Article 233

of the Constitution redundant.

122. It will be relevant to refer to the following observations

of Constitution Bench of this Court in the case of Union of

India and Another v. Hansoli Devi and Others20:

“9. ……Patanjali Sastri, C.J. in the case of Aswini
Kumar Ghose v. Arabinda Bose [(1952) 2 SCC 237 :
AIR 1952 SC 369 : 1953 SCR 1] had held that it is
not a sound principle of construction to brush aside

20 (2002) 7 SCC 273
words in a statute as being inapposite surplusage, if
they can have appropriate application in
circumstances conceivably within the contemplation
of the statute. In Quebec Railway, Light Heat & Power
Co. Ltd. v. Vandry [AIR 1920 PC 181] it had been
observed that the legislature is deemed not to waste
its words or to say anything in vain and a
construction which attributes redundancy to the
legislature will not be accepted except for compelling
reasons……….”

123. We are of the considered view, and particularly in view

of what has been held in the case of Rameshwar Dayal

(supra), that clause (2) of
Article 233
of the Constitution

contains provisions with regard to qualification for

appointment of district judge wherein it provides that for

anyone who is not already in service of the Union or of the

State, such a person will be eligible to be appointed as district

judge only if he has been for not less than seven years an

advocate or a pleader. However, if a person is already in

judicial service of the Union or of the State, no such

requirement is provided for.

124. We are also of the considered view that if clause (2) of

Article 233
of the Constitution is not read in the aforesaid

manner, then the words “a person not already in the service of

the Union or of the State” will be rendered redundant and
otiose. Such an interpretation of clause (2) of
Article 233
, in

our view, would not be permissible in law.

125. We are further of the considered view that if the

principle of textual and contextual interpretation is applied to

the provisions of
Article 233
of the Constitution, it would

require that the first part of clause (2) of
Article 233
of the

Constitution be read as “other than a person already in the

service of the Union or of the State” or “except the person

already in the service of the Union or of the State” so as to avoid

rendering the first part of clause (2) of
Article 233
being

rendered redundant and otiose. This interpretation of ours

derives support from the judgment of this Court in the case of

Rameshwar Dayal (supra) wherein the Constitution Bench

clearly held that clause (2) of
Article 233
provides qualification

for a candidate who is an advocate whereas it does not provide

qualification for an in-service candidate.

126. A combined reading of clauses (1) and (2) of
Article 233

of the Constitution would, therefore, reveal that the

Constitution under clause (2) of
Article 233
does not provide

for qualification for an in-service candidate for direct

recruitment.
127. Insofar as the reliance placed on the recommendations

of the Shetty Commission and the directions issued in All

India Judges’ Association (supra) by the Respondents are

concerned, it will be relevant to note that the

recommendations were made by the Shetty Commission when

the judgment of this Court in the case of Satya Narain (supra)

was holding the field.

iii. Recommendations of the Shetty Commission

128. It will be relevant to refer to the following

recommendations made in the Shetty Commission’s report:

“11.50 We have given our anxious consideration to
the views and comments expressed by the
respondents to our Questions 8.3 and 8.4.
11.51 The majority of the High Courts and the
Service Associations barring a couple of them are for
giving an opportunity to the Service judges for direct
recruitment as District Judges. Even, some of the
Governments are in favour of such a move. The
reasons given in support of the proposal are that it
would promote efficiency, improve discipline in
judicial service and make the officers to work more
efficiently, diligently and sincerely.
11.52 We are highly impressed by the reasons given
by the High Courts of Allahabad, Bombay, Punjab &
Haryana and All India Judges’ Association. If
meritorious young blood should be introduced in the
mixed cadre, there is no reason why merited serving
judges should be excluded from consideration for
direct recruitment. In such selection the High Court
will have an opportunity to assess the merit of
serving judges as against the merits of the competent
advocates. The Bombay High Court has rightly
observed that the High Court in such selection will
have an added advantage of assessing the service
judges on the basis of their work and confidential
records.
11.53 We agree that if an opportunity is afforded, it
would make the Officers to work more efficiently,
diligently and sincerely.
11.54 We do not understand why such an
opportunity should create indiscipline, heart-burn
and jealousy amongst the judicial officers as the
Karnataka High Court has stated. We are equally
unable to appreciate that it may lead to frustration
amongst the Seniors who are not selected for direct
recruitment as indicated by the Delhi High Court.
11.55 It may be noted that we are not recommending
for accelerated promotion to Service judges. The
accelerated promotion to a junior judge may lead to
heart-burn and jealousy in the Service. Though we
have formulated a question on that aspect and
though some of the High Courts and Associations are
in favour of introducing the system of accelerated
promotion, we do not consider it desirable to have
that system since it is likely to lead to bitterness and
jealousy amongst the officers.
11.56 The Commission considers that if an
opportunity for direct recruitment is afforded to in
service judges, it would, to a great extent, remove the
frustration which is presently dogging them. Such an
opportunity would add lustre to their career and
enable them to outshine with their merit, hard work
and sincerity.
11.57 The contention urged by the directly recruited
District Judges that those who have got the
promotional channel should be allowed to make a
move only through that channel does not sound to
reason. In All India Administrative Service, there is
no bar for any person in any service for applying,
subject to the age prescribed. It is a common
experience that many of the successful IAS and IPS
candidates initially belonged to one or the other
service.
11.58 The Commission, therefore, considers that it is
reasonable and also necessary to provide eligibility
for service judges for direct recruitment of District
Judges.”

129. It can thus clearly be seen that the Shetty Commission

has recorded that a majority of the High Courts and the Service

Associations were of the view that the service judges should be

given an opportunity for direct recruitment as district judges.

The reasoning given in support of the said recommendation by

the Commission was to promote efficiency, improve discipline

in judicial service and make the officers work more efficiently,

diligently and sincerely. It has been observed that if

meritorious young blood should be introduced in the mixed

cadre, there is no reason as to why merited serving judges

should be excluded from consideration for direct recruitment.

130. It has been further observed that, in such a selection,

the High Court will have an opportunity to assess the merit of

serving judges as against the merits of the competent

advocates. The Shetty Commission also referred to the view of

the Bombay High Court wherein it was stated that the High

Court in such selection will have an added advantage of
assessing the service judges on the basis of their work and

confidential records.

131. The argument with regard to indiscipline, heartburn

and jealousy amongst the judicial officers as put in by the

Karnataka High Court has been specifically rejected by the

Shetty Commission. The Commission further found that if

such an opportunity is provided for direct recruitment to the

in-service judges, it would, to a great extent, remove the

frustration which is presently dogging them. It has been

observed that such an opportunity would add lustre to their

career and enable them to outshine with their merit, hard work

and sincerity.

132. The Shetty Commission further observed that when

there is no such restriction in All India Services, there is no

reason as to why the service judges should be forced to enter

to judicial service only through promotional channel and not

be permitted to enter through the direct recruitment. It has

been observed that it was common experience that many of

the successful IAS and IPS candidates initially belonged to one

or the other service. The Shetty Commission, therefore,

recommended amending
Article 233
of the Constitution by
insertion of clause (3) in it. The Shetty Commission also

recommended an age limit between 35 years and 45 years for

advocates and the serving judges to apply for direct

recruitment to the post of district judge.

133. It is to be noted that the recommendations for

amendment of the Constitution as made by the Shetty

Commission are on the basis of the interpretation of clause (2)

of
Article 233
of the Constitution in the judgment of this Court

in the case of Satya Narain Singh (supra). We have already

held that the interpretation as placed in the case of Satya

Narain Singh (supra) and followed subsequently is not a

correct interpretation.

134. We are, therefore, in full agreement with those

observations made by the Shetty Commission, according to

which in order to promote efficiency in the cadre of district

judges, the young talented meritorious judicial officers should

not be denied an opportunity.

iv. Experience of a Judicial Officer

135. As a matter of fact, some of the observations made in

the subsequent three-Judge Bench judgments of this Court in

the cases of Sushma Suri (supra) and Deepak Aggarwal
(supra) would support the view that we have taken. In both the

said cases, this Court held that merely because by virtue of

being Government Advocates, the candidates who were in

employment, their rich experience of working as a lawyer for

the Government cannot be ignored. It has further been held

that since they continue to appear for the Government either

on the civil side or on the criminal side, their rich experience

would benefit the judiciary.

136. Rule 49 of the Bar Council of India Rules as originally

framed, reads as follows:

“An advocate shall not be a full-time salaried
employee of any person, Government, firm,
corporation or concern, so long as he continues to
practise and shall, on taking up any such
employment, intimate the fact to the Bar Council on
whose roll his name appears, and shall thereupon
cease to practise as an advocate so long as he
continues in such employment.
Nothing in this rule shall apply to a law officer of the
Central Government or of a State or of any Public
Corporation or body constituted by statute who is
entitled to be enrolled under the rules of his State Bar
Council made under
Section 28(2)(d)
read with

Section 24(1)(e)
of the Act despite his being a full-time
salaried employee.
Law Officer for the purpose of this Rule means a
person who is so designated by the terms of his
appointment and who, by the said terms, is required
to act and/or plead in Courts on behalf of his
employer.”
137. As already referred to hereinabove, in Sushma Suri

(supra), the question arose as to whether the word “Advocate”

in
Article 233(2)
includes a law officer of the Central or State

Government, public corporation or of a body corporate, who is

enrolled as an advocate under exception to Rule 49, who is

practicing before Courts or Tribunal for his employer. A three-

Judge Bench held positively, permitting a Public Prosecutor

and Government Counsel who is on the rolls of the Bar

Council, as entitled to practice under the Act, who would also

answer the description of an Advocate under
Article 233(2)
of

the Act.

138. The very same question arose in a different context in

Satish Kumar Sharma v. Bar Council of H.P.21. The

appellant therein was appointed as Assistant (Legal) by the

Himachal Pradesh State Electricity Board, who later enrolled

with the State Bar Council at the expense of the Board. After

his appointment, the appellant therein continued in the Board

as a regular employee, was given promotions with change in

designations and was also appearing for the Board in the

Courts. The certificate of enrolment issued in the year 1984

21 (2001) 2 SCC 365
was withdrawn by the Bar Council of the State in the year

1996 after due notice and opportunity of hearing. Looking at

the nature of the duties of the appellant who was a full-time

salaried employee, it was found that his work was not mainly

or exclusively to act or plead in Courts and he had to attend

to many more duties, which were quite substantial and

predominant. The appellant therein was also found to be

amenable to disciplinary jurisdiction of his employer and mere

occasional appearances in some Courts on behalf of the

employer could not bring the employer within the meaning of

“Law Officer” under paragraph 3 of Rule 49 was the finding.

The decision in Sushma Suri (supra) was specifically noticed

and distinguished on the ground that in that case the court

was concerned with the definition of the word “Advocate” as

appearing in
Article 233(2)
, which was held to include a law

officer of the Central or State Government who is enrolled as

an advocate falling under exception to Rule 49. It was found

so in paragraph 20 of Satish Kumar Sharma (supra):

“20. As stated in the above para the test indicated is
whether a person is engaged to act or plead in a court
of law as an Advocate and not whether such person
is engaged on terms of salary or payment by
remuneration. The essence is as to what such Law
Officer engaged by the Government does.”
139. Satish Kumar Sharma, however, was found to be not

coming within the exception under Rule 49 especially when

there was no rule framed by the State Bar Council entitling

law officers to enrol as an Advocate even if they were full time

employees. The contention that after such a long time his

certificate of enrolment could not have been cancelled was

negated on the finding that even at the threshold, he was not

entitled to be enrolled under Rule 49. On the same premise an

alternative contention that he may be permitted to resign and

retain his enrolment from the date on which the certificate was

issued was also negated. Finding no reason to maintain his

seniority on the rolls of the State Bar Council, on the basis of

an enrolment certificate which at its very issuance was barred,

the claim was rejected.

140. We have to specifically notice that both these decisions

were taken based on Rule 49 as it existed then. The exceptions

provided by paragraphs 2 and 3 have now been removed and

have been substituted with the following:

“That as Supreme Court has struck down the
appearance by Law Officers in Court even on behalf
of their employers the Judgment will operate in the
case of all Law Officers. Even if they were allowed to
appear on behalf of their employers all such Law
Officers who are till now appearing on behalf of their
employers shall not be allowed to appear as
advocates. The State Bar Council should also ensure
that those Law Officers who have been allowed to
practice on behalf of their employers will cease to
practice. It is made clear that those Law Officers who
after joining services obtained enrolment by reason of
the enabling provision cannot practice even on behalf
of their employers.
That the Bar Council of India is of the view that if the
said Officer is a whole time employee drawing regular
salary, he will not be entitled to be enrolled as an
advocate. If the terms of employment show that he is
not in full time employment he can be enrolled.”

141. As of now, an employee cannot get enrolled in the rolls

of the State Bar Council without giving up his employment. A

law graduate who is enrolled as an Advocate on taking up

regular employment as full time salaried employee is obliged

to intimate the fact to the Bar Council in which he is enrolled

and would then seize to practice as an Advocate so long as he

continues such employment. Failure to make such intimation

can result in his name being struck off from the Rolls. Reading

Sections 29
,
and
of the Advocates Act, 1961 together

with Rule 49 of the Bar Council of India Rules, an employee,

even if he is in the Rolls of the State Bar Council, as long as

he remains a fully salaried employee, on intimation of the

regular employment would be prohibited from carrying on

practice of law as an Advocate.
142. It is further to be noted that Bar Council of India Rules

“Part VI – Rules Governing Advocates” came to be amended by

the Bar Council of India by incorporating Chapter III

“Conditions for Right to Practice” in 2010. In the said newly

added Chapter III, Rule 5 deals with voluntarily suspension of

practice as well as resumption of practice. Under this Rule, an

advocate upon joining the judicial service is expected to

intimate to the concerned State Bar Council that he has joined

the judicial service as a result of which his right to practice

stands voluntarily suspended. Therefore, an advocate who

joins the judicial service on his resignation or retirement is

entitled to resume his practice after the Enrolment Committee

of the concerned State Bar Council orders the resumption of

his practice and returns the certificate to him with the

necessary endorsement.

143. It is thus clear that an advocate who joins the judicial

service only suspends his right to practice and continues to be

on the roll of the State Bar Council.

144. In the case of Rameshwar Dayal (supra), the

Constitution Bench has found that Harbans Singh and P.R.

Sawhney, Respondents No. 3 and 6 therein, were entitled to
be appointed as district judges though they were in service of

the State on the date of their appointment. Though, their

names were not found on the roll of the Bar Council, it was

held by the Constitution Bench while interpreting
Section

8(2)(a)
of the Bar Councils Act, 1926 and Clause 6 of the High

Courts (Punjab) Order, 1947 that the said Respondents did not

cease to be advocates at any time or stage after August 15,

1947 and they were deemed to be continued as advocates of

the Punjab High Court till they were appointed as district

judges.

145. At the cost of repetition, we may state that as per the

provisions contained in the Bar Council of India Rules, an

advocate even upon his selection and joining as a judicial

officer, he/she continues to be on the roll of the Bar Council.

146. As already discussed hereinabove, the experience the

judicial officers gain while working as judges is much greater

than the one, a person gains while working as an advocate.

Apart from that, before commencing their work as judicial

officers, the judges are also required to undergo rigorous

training of at least one year.
147. When Government pleaders and Assistant Public

Prosecutor who were still practicing in courts were held to be

competent to apply for direct recruitment to the post of district

judge, can the judicial officers before whom they practice,

considered to be inferior. In fact, there is an anomaly insofar

as an Assistant Public Prosecutor being entitled to participate

in the direct recruitment of district judges, while the judicial

officers before whom they argue case are disabled; as

interpreted in Dheeraj Mor (supra).

148. We, therefore, see no reason to deny an opportunity to

such young talented judicial officers to compete with the

advocates/pleaders having seven years’ practice in the matter

of direct recruitment to the post of district judge.

149. We may also gainfully refer to the case of Leela Dhar

v. State of Rajasthan and Others22, where a three-Judge

Bench of this Court has observed thus:

“4. The object of any process of selection for entry
into a public service is to secure the best and the
most suitable person for the job, avoiding patronage
and favouritism. Selection based on merit, tested
impartially and objectively, is the essential
foundation of any useful and efficient public service.
So, open competitive examination has come to be

22 (1981) 4 SCC 159
accepted almost universally as the gateway to public
services….”

150. It can thus be seen that the object of any process of

selection for entry into a public service should be to secure the

best and the most suitable person for the job.

151. The view taken in the case of Leela Dhar (supra) has

been approved by the Constitution Bench in the case of Tej

Prakash Pathak and Others v. Rajasthan High Court and

Others23. This Court, in the said case, observed thus:

“49. The ultimate object of any process of selection
for entry into a public service is to secure the best
and the most suitable person for the job, avoiding
patronage and favouritism. Selection based on merit,
tested impartially and objectively, is the essential
foundation of any useful and efficient public service.
So, open competitive examination has come to be
accepted almost universally as the gateway to public
services. [Lila Dhar v. State of Rajasthan, (1981) 4
SCC 159, para 4 : 1981 SCC (L&S) 588] It is now well
settled that while a written examination assesses a
candidate's knowledge and intellectual ability, an
interview test is valuable to assess a candidate's
overall intellectual and personal qualities.”

23 (2025) 2 SCC 1
v. Interpretation of a Constitutional Provision cannot
be pedantic

152. Insofar as the reliance placed by the Respondents on

the judgment of this Court in the case of All India Judges’

Association and Others (supra) is concerned, wherein this

Court observed that the recruitment to the higher judicial

service from amongst the advocates should be 25% and that

the recruitment should be by way of a competitive examination

including both written examination and viva voce, we may

again state that the said observations are in light of the view

taken by this Court in the case of Satya Narain Singh (supra)

and subsequent judgments relying on Satya Narain Singh

(supra).

153. As observed by this Court in a catena of cases, the

interpretation of the constitutional provisions cannot be

pedantic. It has to be organic. A purposeful interpretation has

to be adopted. If the appointment to the district judges cadre

is to be made directly for the purpose of enhancing the

efficiency of district judiciary, any interpretation which

restricts the competition and prohibits the otherwise

meritorious candidates from zone of consideration will have to

be eschewed. The interpretation which advances the purpose
of bringing in efficiency in the district judiciary and permitting

a broad-based competition amongst all the eligible candidates

will have to be accepted.

154. We are, therefore, of the considered view that the

judgments of this Court right from Satya Narain Singh

(supra) till Dheeraj Mor (supra) do not lay down a correct

proposition of law.

vi. Eligibility of a Judicial Officer for Direct
Recruitment

155. That leaves us with the question as to whether there

should be no qualifications at all for a member of judicial

service in the service of the State or the Union, for participating

in the selection process for the post of district judge by direct

recruitment.

156. As already discussed hereinabove, all matters

pertaining to appointment of a person to the post of a district

judge, his posting and promotion are covered under clause (1)

of
Article 233
of the Constitution. As held by the Constitution

Bench in Kuseswar Saikia (supra), even the appointment as

a district judge by promotion is covered by
Article 233(1)
of the

Constitution. As such, the State Governments in consultation
with the respective High Courts will have to frame rules

providing eligibility for in-service candidates to apply for the

post of district judge which would be filled by direct

recruitment. We are in full agreement with the view taken by

this Court in the case of All India Judges’ Association

(supra) that the recruitment rules in all the States will have to

be uniform as far as possible. Therefore, while maintaining the

proportion of 50:25:25 for the posts of district judges as

provided by the judgment of this Court in All India Judges’

Association (supra) which was reiterated by this Court in the

recent judgment in the case of All India Judges’ Association

and Others v. Union of India and Others24, we propose to

issue directions to the State Governments for framing rules in

consultation with the respective High Courts providing the

eligibility for candidates who are already in judicial service to

apply for the post of district judge to be filled through direct

recruitment process.

157. In that respect, we are of the considered view that for

bringing the advocates and the in-service candidates at the

same level, it will be appropriate that the rules provide that an

24 2025 SCC OnLine SC 1184
in-service candidate should be eligible for recruitment to the

post of district judge directly only if he has a combined

experience of seven years as an advocate and a judicial officer.

Similarly, if an advocate is participating in the selection

process and he was a member of judicial service in the past,

then his experience as a judicial officer also cannot be ignored.

His experience as an advocate prior to joining judicial service,

his experience as a judicial officer and his experience as an

advocate after leaving the judicial service will all have to be

taken together. Such a candidate will be eligible only if he has

a combined experience as an advocate and as a judicial officer

for seven years.

158. We are also of the considered view that in order to make

available a level playing field for all the candidates, whether

from in-service or advocates/pleaders, the minimum age as on

the date of application should be 35 years as recommended by

the Shetty Commission.

159. Insofar as the contention regarding the heartburn

amongst the judicial officers in a situation where a junior gets

promoted before the senior is concerned, in our view, the said

contention is without any merit. The in-service candidates,
though junior, will have to compete before being selected with

the advocates as also their seniors, who also will be qualified,

and only meritorious candidates would be selected and

appointed. If a person is meritorious and on account of merit

and merit alone gets selected directly as a district judge, there

can be no question of heartburn for those who are not as

meritorious as persons selected.

160. Insofar as the contention that if the in-service

candidates are permitted to participate in the recruitment

process as direct recruit, then the advocates/pleaders would

not be in a position to get selected is concerned, the same is

also without any merit.

161. In the selection process, as observed by the Shetty

Commission, the selection would be on the basis of competitive

examination, including both written examination and viva

voce, and the majority of the marks would be for the written

examination. The advocates/pleaders as well as in-service

candidates would compete together and only the best/most

meritorious amongst them will be selected with no weightage

being conferred on in-service candidates. If such a restriction

is not applicable in All India Services, we see no reason to
import such an artificial restriction in the appointment of

district judges by way of direct recruitment.

vii. Break in practice of a prospective candidate

162. Insofar as the contention advanced by the learned

Senior Counsel on behalf of some of the Petitioners that even

if there is a break in the number of years of practice of a

candidate, such break should be ignored and such persons

who are having a total of seven years of practice should be

considered eligible for appointment insofar as the direct

district judges is concerned, we are not inclined to accept the

said contention.

163. We say so because say if a person has practised for five

years and thereafter, he takes a break of ten years and

thereafter practises for two years, there will be a disconnect

with the legal profession. We are, therefore, inclined to hold

that only such persons working either as an advocate/pleader

including Government Pleaders and Public Prosecutors or as

a judicial officer who, on the date of application, have a

continuous experience of either an advocate/pleader or a

judicial officer or a combination thereof shall only be eligible
to be considered for appointment as district judges through

the stream of direct recruitment.

viii. Quota for Advocates under
Article 233(2)

164.
We are also not inclined to accept the contention on

behalf of the respondents that 25% quota of direct recruitment

is reserved only for practising advocates. We are of the view

that if the contention in this respect is accepted, it will amount

to providing a “quota” for the advocates having seven years’

practice. A plain and literal reading of
Article 233(2)
does not

contemplate such a situation. Therefore, the contention as

canvassed in that regard does not hold water.

ix. Doctrine of stare decisis

165. Before we proceed to answer the questions that are

framed for our consideration, it will be necessary to consider

the submission on behalf of the Respondents that in view of

the doctrine of stare decisis, since the law laid down by this

Court in Satya Narain Singh (supra) has been followed for a

period of over 40 years, the same should not be disturbed.

166. We are, however, unable to accept the said contention.

In this respect, we may gainfully refer to a recent judgment of
this Court in the case of Property Owners Association and

Others v. State of Maharashtra and Others25:

“107. We are not inclined to accept this submission.
In Sita Soren v. Union of India (2024) 5 SCC 629, a
Constitution Bench of this Court, speaking through
one of us (DY Chandrachud, J) had occasion to
clarify that the doctrine of stare decisis is not an
inflexible rule of law. This Court may review its earlier
decisions if it believes that there is an error, or the
effect of the decision would harm the interests of the
public or if “it is inconsistent with the legal
philosophy of the Constitution”. In cases involving
the interpretation of the Constitution, this Court
would do so more readily than in other branches of
law because not rectifying a manifest error would be
harmful to the public interest and the polity. The
period of time over which the case has held the field
is not of primary consequence.”

167. We are of the considered view that all the judgments

right from Satya Narain Singh (supra) onwards till Dheeraj

Mor (supra) have incorrectly applied the law laid down by the

Constitution Benches of this Court in Rameshwar Dayal

(supra) and Chandra Mohan (supra). As a result, by applying

the law laid down by this line of judgments, injustice was

meted out to the members of the judicial services, thereby

25 2024 SCC OnLine SC 3122
depriving them from participating in the selection process for

the post of district judges by way of direct recruitment.

168. The interpretation placed by the judgments right from

Satya Narain Singh (supra) onwards till Dheeraj Mor

(supra), in our view, is totally inconsistent with the provisions

of clause (2) of
Article 233
of the Constitution. Having thus

found that the law laid down by this Court in the

aforementioned cases does not correctly interpret the

provisions of
Article 233
, if we fail to correct the legal position,

we will be perpetuating the injustice that has been meted out

for decades.

169. It is further to be noted that the judgments of this

Court in Satya Narain Singh (supra) onwards have taken an

incorrect view. Even after noticing the factual position in the

case of Rameshwar Dayal (supra) that two of the persons

selected and whose appointments were challenged were in-

service candidates, the judgment in Satya Narain Singh

(supra) and other judgments held that the post of district judge

to be filled by direct recruitment are not available to in-service

candidates and can be filled in only by the advocates having

requisite number of years of practice. Even in the case of
Chandra Mohan (supra), a rule that fell for consideration was

dealing with the direct recruitment of district judges. The said

rule provided for applications for direct recruitment to be made

by Barristers, Advocates, Vakils and Pleaders of more than

seven years’ standing, as well as judicial officers, who were

admittedly from the executive branch of the State. We are,

therefore, of the considered view that even after noticing these

aspects in the Constitution Bench judgments of this Court, the

subsequent judgments holding that filling the post of district

judge by direct recruitment could be filled in only by

advocates/pleaders, are not only inconsistent with the literal

interpretation of
Article 233
but also inconsistent with the

factual position as it emanated for consideration of this Court

in the cases of Rameshwar Dayal (supra) and Chandra

Mohan (supra). We, therefore, reject the argument on stare

decisis as raised by the Respondents.

170. In any case, we clarify that what we have held in this

judgment will be applicable only from the date of this judgment

and in no case, any selection process completed, or any

appointment made prior to this judgment would be affected,

except in cases wherein any interim order(s) were passed by
the High Courts or this Court. In such cases, the issue would

now be governed by the orders to be passed by the Bench

hearing the matters.

F. CONCLUSION AND DIRECTIONS

171. In view of the answer which we propose to give for

Question No. 4, it may not be necessary to deal with the other

questions, however, since the questions are framed by this

Court, we propose to answer all the questions.

172. In the result, we answer the questions as under:

(i) Judicial Officers who have already completed seven

years in Bar before they were recruited in the

subordinate judicial service would be entitled for being

appointed as a District Judge/Additional District

Judge in the selection process for the post of District

Judges in the direct recruitment process;

(ii) The eligibility for appointment as a District

Judge/Additional District Judge is to be seen at the

time of application;

(iii) Though there is no eligibility prescribed under
Article

233(2)
for a person already in judicial service of the
Union or of the State for being appointed as District

Judge, in order to provide a level playing field, we

direct that a candidate applying as an in-service

candidate should have seven years’ combined

experience as a Judicial Officer and an advocate;

(iv) A person who has been or who is in judicial service

and has a combined experience of seven years or more

as an advocate or a Judicial Officer would be eligible

for being considered and appointed as a District

Judge/Additional District Judge under
Article 233
of

the Constitution;

(v) In order to ensure level playing field, we further direct

that the minimum age for being considered and

appointed as a District Judge/Additional District

Judge for both advocates and Judicial Officers would

be 35 years of age as on the date of application.

(vi) It is held that the view taken in the judgments of this

Court right from Satya Narain Singh (supra) till

Dheeraj Mor (supra), which take a view contrary to
what has been held hereinabove do not lay down the

correct proposition of law.

173. The reference is answered accordingly.

174. Consequently, all such rules framed by the State

Governments in consultation with the High Courts which are

not in accordance with the aforesaid answers shall stand

quashed and set aside. It is directed that all the State

Governments in consultation with the High Courts shall

frame/amend the rules in accordance with what has been held

by us hereinabove, within a period of three months from today.

175. The Registry is directed to obtain the necessary orders

from Hon’ble the Chief Justice of India, on the administrative

side, to place the matters part of the present batch before an

appropriate bench for deciding the same in the light of what

has been held hereinabove.

176. Before we conclude, we place on record our sincere

appreciation for all the learned Senior Counsel/counsel, so

also their junior counsel, for assisting us in such meticulous

manner. Our task was made easier by the assistance rendered

by them. We also place on record our appreciation for all the
learned counsel for strictly adhering to the time-limits, as a

result of which this Court was able to complete the hearing in

the prescribed time period. We would be remiss if we do not

place on record our appreciation for the Nodal Counsel in

collating all the material in an organized manner.

…………..............................CJI
(B.R. GAVAI)

.............................................J
(ARAVIND KUMAR)

.............................................J
(SATISH CHANDRA SHARMA)

.............................................J
(K. VINOD CHANDRAN)

NEW DELHI;
OCTOBER 09, 2025.
REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL/INHERENT JURISDICTION
CIVIL APPEAL NO. 3947 OF 2020

REJANISH K.V. …APPELLANT(S)

VERSUS

K. DEEPA AND OTHERS …RESPONDENT(S)

WITH
CONNECTED MATTERS

JUDGMENT

M. M. Sundresh, J.

1. I have gone through the detailed analysis made by Hon’ble the Chief

Justice of India in rendering the judgment. While I am in absolute

agreement with the reasoning and the ultimate conclusion arrived at,

along with the directions issued therein, I would only add my views on

the interpretation of
Article 233
of the Constitution of India, 1950

(hereinafter referred to as “the Constitution”).

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2. We are dealing with a situation where this Court, in its subsequent

decisions in
Satya Narain Singh v. High
Court of Judicature at

Allahabad and Others, (1985) 1 SCC 225 and Dheeraj Mor v. High

Court of Delhi, (2020) 7 SCC 401 has misconstrued the law as
laid

down by
the larger benches of this Court in
Rameshwar Dayal v. The

State of Punjab and Others
, 1960 SCC OnLine SC 123 and Chandra

Mohan v. State of Uttar Pradesh and Others, 1966 SCC OnLine SC

35.

3. Chapter VI of the Constitution deals exclusively with appointment,

recruitment and control qua the Subordinate Courts. It is rather

significant to note that this Chapter starts from the top with the

appointment of district judges, followed by recruitment of persons other

than district judges to the judicial service, moves on to control over

Subordinate Courts, defines the expression “district judge” and

“judicial service” and thereafter ends with the application of provisions

of this Chapter to certain classes of Magistrates.

CHAPTER VI
SUBORDINATE COURTS

Article 233
of the Constitution

“233. Appointment of district judges.—(1) Appointments of persons to
be, and the posting and promotion of, district judges in any State shall be

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made by the Governor of the State in consultation with the High Court
exercising jurisdiction in relation to such State.

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

Article 233-A
of the Constitution

“233-A. 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
of the Constitution

“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 and with the High Court exercising jurisdiction
in relation to such State.”

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Article 235
of the Constitution

“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
of the Constitution

“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.”

Article 237
of the Constitution

“237. Application of the provisions of this Chapter to certain class or
classes of magistrates.—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.”

4. As per
Article 233
and
Article 234
of the Constitution, while an

appointment to the post of a district judge, and to posts in the judicial

service other than that of a district judge shall be made by the Governor

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of the State, the consultation is only with the High Court for the former,

while it additionally extends to the State Public Service Commission

for the latter. The exclusion of the State Public Service Commission in

the process of appointment to the post of a district judge shows that

added importance is given to the said post.

5.
Article 233
of the Constitution deals with two modes of appointment to

the post of a district judge. Clause (1) of
Article 233
of the Constitution

speaks of appointments to be made to the post of a district judge. These

appointments are to be made either by way of a promotion or through

direct recruitment.

6. The procedure for appointment, posting and promotion to the post of a

district judge, qua a person in the judicial service, is one and the same

with respect to the appointing authority, namely, the Governor, and the

same is to be done in consultation with the High Court. Promotion is

obviously meant only for a person in the judicial service. One has to be

promoted first by the Governor, in consultation with the High Court,

and thereafter appointed as a district judge. Therefore, promotion is a

precursor to appointment as a district judge qua a person in the judicial

service. Such an appointment is nothing but a resultant consequence.

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To make this position clear, one has to read
Article 233(1)
of the

Constitution with respect to appointments as “appointments of persons

to be district judges”. Similarly, for posting, it has to be read as “posting

of district judges” and promotions of persons in the judicial service as

“promotion and appointment as district judges.” One cannot ignore the

word “persons” which would only mean persons from two modes of

appointment. Therefore,
Article 233(1)
of the Constitution deals with

both, the modes and the sources of appointment.

7.
Article 233(2)
of the Constitution is a continuation of
Article 233(1)
of

the Constitution. This provision, in fact, reiterates the fact that an

appointment by way of direct recruitment can be done from two

sources, namely, ‘judicial service’ and ‘an advocate or a pleader’. While

doing so, it declares the eligibility criteria only for the latter. Hence, it

is made abundantly clear that no such eligibility criteria are fixed for a

person in the judicial service. Clause (1) along with Clause (2) of
Article
of the Constitution, is a complete code by itself, and therefore does

not leave any room for interpretation otherwise.

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DOCTRINE OF SEPARATION OF POWERS VIS-À-VIS
INDEPENDENCE OF THE JUDICIARY

8. Montesquieu’s words of wisdom in ‘The Spirit of Laws’ become

relevant in this context:

“There can be no liberty... there is no liberty if the powers of judging
are not separated from the legislative and executive... there would be
an end to everything if the same man or the same body... were to
exercise those three powers.”

(emphasis supplied)

9.
Article 50
of the Constitution forms the basis for the applicability of the

doctrine of separation of powers. It deals with the separation of the

judiciary from the executive, and imposes an obligation on the State to

take steps to separate the judiciary from the executive in the public

services of the State.

Article 50
of the Constitution

“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.”

Hence, the concept of ‘independence of the judiciary’ finds both, its

genesis and sustenance, in the doctrine of separation of powers.

Dr. Rajendra Prasad, President of the Constituent Assembly and later

President of India, in his speech to the Constituent Assembly of India,

preceding the motion to adopt the Constitution, in Constituent

Assembly Debates, Volume XI (debate of 26-11-1949), stated thus:

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“We have provided in the Constitution for a judiciary which will be
independent. It is difficult to suggest anything more to make the
Supreme Court and the High Courts independent of the influence of
the executive. There is an attempt made in the Constitution to make
even the lower judiciary independent of any outside or extraneous
influence.”

(emphasis supplied)

It is such independence that allows each and every judge to make

decisions, uninfluenced by any factor. Thus, the independence of the

judiciary and the separation of powers between the three organs of the

State, which form an integral part of the basic structure doctrine, ensure

a vibrant and flourishing institution.

10.Under
Article 233
of the Constitution, the primacy given to the High

Courts, insofar as the mandate for its consultation in appointments to the

post of a district judge, along with the control exercised by it over

Subordinate Courts under
Article 235
of the Constitution, is a classic

exhibition of the doctrine of separation of powers.

11.Judging is an independent sovereign function. The function of the

presiding officer of a Court is purely judicial, and not even quasi-

judicial. For instance, in a criminal case, the prosecuting agency would

invariably be either the State, the Union or their instrumentalities, who

become mere litigants before the Court, though the presiding officer’s

post may be connected to them only for administrative purposes. No

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employee can be an adjudicator of an employer. To say that such a judge

is their employee, and therefore debarred from competing for the

vacancies earmarked to be filled through direct recruitment, would be

contrary to the principle of independence of the judiciary.

12.In the context of the aforesaid discussion, the views of M.P. Singh in his

article titled, ‘Securing the Independence of the Judiciary – The Indian

Experience’ published in the Indiana International & Comparative Law

Review, IU Robert H. McKinney School of Law, gain significance:

“…Although the nature of the Indian Constitution-whether it is federal or
unitary-is doubtful, basically it provides for a federal structure of
government consisting of the Union and the States. The Union and the
States have their distinct powers and organs of governance given in the
constitution. While the Union and States have separate legislatures and
executives, they do not have a separate judiciary. The judiciary has a
single pyramidal structure with the lower or subordinate courts at the
bottom, the High Courts in the middle, and the Supreme Court at the
top. For funding and some administrative purposes, the subordinate
courts are subject to regulation by the respective States, but they are
basically under the supervision of the High Courts….The unitary
character of the judiciary is not an accident but rather a conscious and
deliberate act of the constitution makers for whom a single integrated
judiciary and uniformity of law were essential for the maintenance of
the unity of the country and of uniform standards of judicial behavior
and independence….”

(emphasis supplied)

13.Judicial service is a distinct service by itself, owing allegiance to the

judiciary alone. Therefore, it is kept away from the hands of the other

two organs, except to a limited extent. Any attempt to dilute such judicial

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independence, by giving a rigid interpretation, would be against the

constitutional ethos. The said view gets fortified by the judgment of this

Court in the case of
State of Bihar and Another v. Bal Mukund Sah

and Others
, (2000) 4 SCC 640

“32. It is true, as submitted by learned Senior Counsel, Shri Dwivedi for the
appellant State that under
Article 16(4)
the State is enabled to provide for
reservations in services. But so far as “Judicial Service” is concerned,
such reservation can be made by the Governor, in exercise of his rule-
making power only after consultation with the High Court. The
enactment of any statutory provision dehors consultation with the High
Court for regulating the recruitment to the District Judiciary and to
the Subordinate Judiciary will clearly fly in the face of the complete
scheme of recruitment and appointment to the Subordinate Judiciary
and the exclusive field earmarked in connection with such
appointments by
Articles 233
and
234.
It is not as if that the High
Courts being constitutional functionaries may be oblivious of the need
for a scheme of reservation if necessary in appropriate cases by
resorting to the enabling provision under
Article 16(4).
The High
Courts can get consulted by the Governor for framing appropriate
rules regarding reservation for governing recruitment under
Articles
and
234.
But so long as it is not done, the Legislature cannot, by an
indirect method, completely bypassing the High Court and exercising
its legislative power, circumvent and cut across the very scheme of
recruitment and appointment to the District Judiciary as envisaged by
the makers of the Constitution. Such an exercise, apart from being
totally forbidden by the constitutional scheme, will also fall foul on the
concept relating to “separation of powers between the Legislature, the
Executive and the Judiciary” as well as the fundamental concept of an
“independent Judiciary”. Both these concepts are now elevated to the
level of basic structure of the Constitution and are the very heart of the
constitutional scheme.

33.
In the case of
Kesavananda Bharati v. State of Kerala
[(1973) 4 SCC
225] a twelve-Member Constitution Bench of this Court had occasion
to consider this question regarding the basic structure of the
Constitution which, according to the Court, could not be tinkered with
by Parliament in exercise of its amending power under
Article 368
of
the Constitution.
Sikri, C.J., in para 247 of the Report referred with
approval the decision of the Judicial Committee in Liyanage case

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[Liyanage v. R., (1967) 1 AC 259 : (1966) 1 All ER 650 : (1966) 2 WLR
682 (PC)] for culling out the implied limitations on the amending power of
the competent Legislature like Parliament of Ceylon with which that case
was concerned. The relevant observations are found in SCC paras 253 to
255 of the Report at pp. 357 and 358, which read as under:

“253. The case, however, furnishes another instance where implied
limitations were inferred. After referring to the provisions dealing with
‘Judicature’ and the Judges, the Board observed:

‘These provisions manifest an intention to secure in the Judiciary a
freedom from political, legislative and executive control. They are
wholly appropriate in a Constitution which intends that judicial
power shall be vested only in the Judicature. They would be
inappropriate in a Constitution by which it was intended that judicial
power should be shared by the Executive or the Legislature. The
Constitution's silence as to the vesting of judicial power is consistent
with its remaining, where it had lain for more than a century, in the
hands of the Judicature. It is not consistent with any intention that
henceforth it should pass to or be shared by, the Executive or the
Legislature.’

254. The Judicial Committee was of the view that there ‘exists a
separate power in the Judicature which under the Constitution as it
stands cannot be usurped or infringed by the Executive or the
Legislature’. The Judicial Committee cut down the plain words of

Section 29(1)
thus:

‘
Section 29(1)
of the Constitution says.—“Subject to the provisions of this
Order Parliament shall have power to make laws for the peace, order and
good government of the Island.” These words have habitually been
construed in their fullest scope.
Section 29(4)
provides that Parliament
may amend the Constitution on a two-thirds majority with a certificate of
the Speaker. Their Lordships however cannot read the words of
Section
29(1)
as entitling Parliament to pass legislation which usurps the judicial
power of the Judicature — e.g., by passing an Act of attainder against
some person or instructing a Judge to bring in a verdict of guilty against
someone who is being tried — if in law such usurpation would otherwise
be contrary to the Constitution.’ (p. 289)

255. In conclusion the Judicial Committee held that there was interference
with the functions of the Judiciary and it was not only the likely but the
intended effect of the impugned enactments, and that was fatal to their
validity.”

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The ultimate conclusion to which Chief Justice Sikri reached are found in
paras 292 to 294 at p. 366 of the Report which read as under:

“292. The learned Attorney General said that every provision of the
Constitution is essential; otherwise it would not have been put in the
Constitution. This is true. But this does not place every provision of the
Constitution in the same position. The true position is that every provision
of the Constitution can be amended provided in the result the basic
foundation and structure of the Constitution remains the same. The basic
structure may be said to consist of the following features:

(1) Supremacy of the Constitution;

(2) Republican and democratic form of Government;

(3) Secular character of the Constitution;

(4) Separation of powers between the Legislature, the Executive and the
Judiciary;

(5) Federal character of the Constitution.

293. The above structure is built on the basic foundation, i.e., the
dignity and freedom of the individual. This is of supreme importance.
This cannot by any form of amendment be destroyed.

294. The above foundation and the above basic features are easily
discernible not only from the Preamble but the whole scheme of the
Constitution, which I have already discussed.”

The other learned Judges constituting the Constitution Bench had
nothing inconsistent to say in this connection. Thus separation of
powers between the Legislature, the Executive and the Judiciary is the
basic feature of the Constitution.

34. It has also to be kept in view that judicial independence is the very
essence and basic structure of the Constitution. We may also usefully
refer to the latest decision of the Constitution Bench of this Court in
Registrar (Admn.), High Court of
Orissa v. Sisir Kanta Satapathy
[(1999)
7 SCC 725 : 1999 SCC (L&S) 1373] wherein K. Venkataswami, J.,
speaking for the Constitution Bench, made the following pertinent
observations in the very first two paras regarding
Articles 233
to 235
of the Constitution of India: (SCC Headnote)

“An independent Judiciary is one of the basic features of the
Constitution of the Republic. Indian Constitution has zealously

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guarded independence of Judiciary. Independence of Judiciary is
doubtless a basic structure of the Constitution but the said concept of
independence has to be confined within the four corners of the
Constitution and cannot go beyond the Constitution.”

The Constitution Bench in the aforesaid decision also relied upon the
observations of this Court in All India Judges' Assn. [(1993) 4 SCC 288
: 1994 SCC (L&S) 148 : (1993) 25 ATC 818 : AIR 1993 SC 2493]
wherein on the topic of regulating the service conditions of the
Judiciary as permitted by
Article 235
read with
Article 309
, it had been
observed as under: (SCC p. 297, para 10)

“[T]he mere fact that
Article 309
gives power to the Executive and the
Legislature to prescribe the service conditions of the Judiciary, does
not mean that the Judiciary should have no say in the matter. It would
be against the spirit of the Constitution to deny any role to the
Judiciary in that behalf, for theoretically it would not be impossible for
the Executive or the Legislature to turn and twist the tail of the
Judiciary by using the said power. Such a consequence would be
against one of the seminal mandates of the Constitution, namely, to
maintain the independence of the Judiciary.”

In view of this settled legal position, therefore, even while operating in the
permissible field of regulating other conditions of service of already-
recruited judicial officers by exercising power under
Article 309
, the
authorities concerned have to keep in view the opinion of the High Court
of the State concerned and the same cannot be whisked away.

35.
In order to fructify this constitutional intention of preserving the
independence of the Judiciary and for fructifying this basic
requirement, the process of recruitment and appointment to the
District Judiciary with which we are concerned in the present case, is
insulated from outside legislative interference by the Constitution-
makers by enacting a complete code for that purpose, as
laid down by

Articles 233
and
234.
Consultation with the High Court is, therefore,
an inevitable essential feature of the exercise contemplated under these
two articles. If any outside independent interference was envisaged by
them, nothing prevented the Founding Fathers from making
Articles
and
subject to the law enacted by the Legislature of States or
Parliament as was done in the case of other articles, as seen earlier….”

(emphasis supplied)

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PRINCIPLE OF CONSTITUTIONAL SILENCE

14.While taking note of the doctrine of separation of powers and

independence of the judiciary, coupled with the maintenance and

enhancement of the quality of judging which forms part of the basic

structure doctrine, a decision was consciously taken by the makers of the

Constitution to fix the eligibility criteria only for the category of ‘an

advocate or a pleader.’ At this juncture, the concept of ‘constitutional

silence’ comes into play as the makers of the Constitution deliberately

left certain areas open-ended, keeping in mind the evolving needs of the

society. This concept is invoked to give effect to the essence of the

Constitution. The spirit of this principle has been captured by Thomas

Carlyle, a Scottish Philosopher and Historian, when he famously stated:

“Under all speech and writing that is good for anything, there lies a
silence that is better....”

(emphasis supplied)

This Court had the occasion to deal with the aforesaid principle in the

case of
Bhanumati and Others v. State of U.P. and Others
, (2010) 12

SCC 1.

“49. Apart from the aforesaid reasons, the arguments by the appellants
cannot be accepted in view of a very well-known constitutional
doctrine, namely, the constitutional doctrine of silence. Michael Foley

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in his treatise on The Silence of Constitutions (Routledge, London and
New York) has argued that in a Constitution “abeyances are valuable,
therefore, not in spite of their obscurity but because of it. They are
significant for the attitudes and approaches to the Constitution that
they evoke, rather than the content or substance of their strictures”.
(P. 10)

50. The learned author elaborated this concept further by saying, “Despite
the absence of any documentary or material form, these abeyances are
real and are an integral part of any Constitution. What remains
unwritten and indeterminate can be just as much responsible for the
operational character and restraining quality of a Constitution as its
more tangible and codified components.” (P. 82)

51. Many issues in our constitutional jurisprudence evolved out of this
doctrine of silence. The basic structure doctrine vis-à-vis
Article 368
of
the Constitution emerged out of this concept of silence in the
Constitution. A Constitution which professes to be democratic and
republican in character and which brings about a revolutionary
change by the Seventy-third Constitutional Amendment by making
detailed provision for democratic decentralisation and self-

government on the principle of grass-root democracy cannot be interpreted
to exclude the provision of no-confidence motion in respect of the office of
the Chairperson of the panchayat just because of its silence on that aspect.”

(emphasis supplied)

15.One must appreciate the constitutional silence on the eligibility criteria

qua a person in the judicial service, which has accordingly been left to

the discretion and wisdom of the High Court and the Governor of the

State, as per
Articles 233
and
of the Constitution. Therefore, such

an omission was done consciously, as a person in the judicial service has

already been recruited by way of an appointment by the orders of the

Governor, in consultation with the High Court and the State Public

Service Commission.

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16.As discussed,
Article 233
of the Constitution does not place any fetters

on the power of the appointing authority qua the fixation of eligibility

criteria for persons in the judicial service, as circumstances might evolve

over time, and the wisdom of the Constitutional Courts would take care

of it.

ELIGIBILITY VIS-À-VIS QUALIFICATION TO THE POST OF A
DISTRICT JUDGE

17.Provisions in the Constitution use the words “qualification” and

“eligibility” interchangeably. Examples of such provisions are
Article
of the Constitution, which provides for the qualifications for election

as President,
Article 66
of the Constitution, which provides for election

of Vice-President and
Article 84
of the Constitution, which provides for

qualification for membership of the Parliament.

18.The word “eligible” used in
Article 233(2)
of the Constitution must be

read as “qualified.” Thus, a person who has been an advocate or a

pleader for not less than seven years, along with the recommendation of

the High Court is one qualification, and a person in the judicial service

is the other qualification. Both of these qualifications are nothing but

mere gateways for being appointed to the post of a district judge,

facilitating a threshold for entry. However, there is no bar on the High

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Court to fix the qualification, qua persons in the judicial service, with

the approval of the Governor. These qualifications are meant only for

consideration for appointment, subject to the successful completion of

the recruitment process.

19.Accordingly, we are inclined to hold that there is no bar on persons in

the judicial service from competing for the vacancies intended to be

filled through direct recruitment. Any interpretation contrary to the

aforesaid view, would amount to a reservation in favour of ‘an advocate

or a pleader,’ which is not only not contemplated under the Constitution,

but also violates the very spirit enshrined thereunder.

20.Another lens through which the aforesaid proposition can be viewed is

Article 233-A
of the Constitution, which provides for the validation of

appointments made at any time before the commencement of the

Constitution (Twentieth Amendment Act
), 1966. Clause (a)(i) of
Article

233-A
of the Constitution encompasses the validation of appointments

from both sources, i.e., a person already in the judicial service and a

person who has been an advocate or a pleader for 7 years or more. The

express reference to both the sources, within the same clause, indicates

the constitutional intent to place the persons in the judicial service at par

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with those from the Bar and thus, they are fully entitled to participate in

the direct recruitment process. The use of the phrase “any such person”

in Clause (a)(ii) of
Article 233-A
of the Constitution, which deals with

the validation of posting, promotion, or transfer, further strengthens their

entitlement to such participation.

CONCLUSION

21.While interpreting a constitutional provision, a Court of law must be

conscious not to violate the basic structure of the Constitution, and is

duty-bound to give it a vibrant and organic interpretation.
Article 14
of

the Constitution forms an integral part of the basic structure. Though it

provides for equality before the law, it allows for a reasonable

classification, based upon an intelligible differentia, having a rational

nexus to the object sought to be achieved. Therefore, construing
Article

233(2)
of the Constitution to be a provision meant only for the category

of ‘an advocate or a pleader’ would certainly be violative of
Article 14

of the Constitution, for the purpose of its interpretation. In other words,

a contra view would amount to creation of a quota for ‘an advocate or a

pleader.’ An absolute bar on persons in the judicial service would

certainly prevent meritorious candidates from competing for the

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vacancies earmarked for direct recruitment, which would be an affront

to the constitutional spirit.

22.A vibrant and qualitative judiciary fosters greater trust in the institution.

Thus, it is vital to build a strong foundation. Maintaining and enhancing

the quality at the bottom of the judicial pyramid would strengthen the

faith of the public in the subordinate judiciary, which in turn would

reduce the filing of appeals before the High Courts and the Supreme

Court, and therefore considerably reduce the overall pendency.

23.Building a strong foundation and ensuring that the base is of pristine

quality is only possible when the best talent is attracted. Letting go of

emerging talent, by not identifying and nurturing them at the earliest,

would lead to mediocrity as against excellence, which would weaken the

foundation and undermine the entire judicial structure. It is obvious that

greater competition would result in better quality. Excluding a group of

persons from competing for a post, which is meant to serve the public,

would certainly be unconstitutional, especially when the Constitution

itself facilitates such participation. It is my fervent hope that our

judgement empowers the institution to emerge stronger and maintain the

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highest standards of justice, as it is the interest of the institution that must

prevail above all.

...………………………. J.

(M. M. SUNDRESH)

NEW DELHI;

OCTOBER 09, 2025

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