Members of subordinate judiciary can’t claim direct recruitment to the District judge post under quota meant for practicing advocates

Supreme Court: A 3-judge bench of Arun Mishra, Vineet Saran and S. Ravindra Bhat, JJ has held that members of the judicial service of any State cannot claim to be appointed for vacancies in the cadre of District Judge, in the quota earmarked for appointment from amongst eligible Advocates, under Article 233.

The Court was hearing a reference from a case wherein the petitioners who are in judicial service, had claimed that in case before joining judicial service a candidate has completed 7 years of practice as an advocate, he/she shall be eligible to stake claim as against the direct recruitment quota from the Bar notwithstanding that on the date of application/appointment, he or she is in judicial service of the Union or State.

Rejecting the contention of the petitioners, the Court held,

“Though the appointment is made under Article 233(1), but the source and the channel for judicial officers is the promotion, and for the members of the Bar is by direct recruitment.”

The Court told the petitioners that it was open to them not to join the subordinate services. They could have staked a claim by continuing to be an advocate to the Higher Judicial Service as against the post of District Judge. However, once they chose to be in service, if they had seven years’ experience at Bar before joining the judicial service, they are disentitled to lay a claim to the 25% quota exclusively earmarked for Advocates; having regard to the dichotomy of different streams and separate quota for recruitment.

“The recruitment from the Bar also has a purpose behind it. The practicing advocates are recruited not only in the higher judiciary but in the High Court and Supreme Court as well. There is a stream (of appointment) for in­service candidates of higher judiciary in the High Court and another stream clearly earmarked for the Bar. The members of the Bar also become experts in their field and gain expertise and have the  experience of appearing in various  courts.”

Justice Mishra, writing for himself and Justice Saran, hence, held:

• The members in the judicial service of the State can be appointed as District Judges by way of promotion or limited competitive examination.
• The Governor of a State is the  authority for the purpose of appointment, promotion, posting and transfer, the eligibility is governed by the Rules framed under Articles 234 and 235.
• Under Article 232(2), an Advocate or a pleader with 7 years of practice can be appointed as District Judge by way of direct recruitment in case he is not already in the judicial service of the Union or a State.
• For the purpose of Article 233(2), an Advocate has to be continuing in practice for not less than 7 years as on the cut­-off date and at the time of appointment as District Judge. Members of judicial service having 7 years’ 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.
• The rules framed by the High Court prohibiting judicial service officers from staking claim to the post of District Judge against the posts reserved for Advocates by way of direct recruitment, cannot be said to be ultra vires and are in conformity with Articles 14, 16 and 233 of the Constitution of India.

Writing down a separate but concurrent view, Justice Bhat also held that under Article 233, a judicial officer, regardless of her or his previous experience as an Advocate with seven years’ practice cannot apply, and compete for appointment to any vacancy in the post of 30 District Judge; her or his chance to occupy that post would be through promotion, in accordance with Rules framed under Article 234 and proviso to Article 309 of the Constitution of India.

Stating that the Constitution makers envisaged that at every rung of the judicial system, a component of direct appointment from members of the Bar should be resorted to, Justice Bhat said,

“The Constitution makers, in the opinion of this court, consciously wished that members of the Bar, should be considered for appointment at all three levels, i.e. as District judges, High Courts and this court. This was because counsel practising in the law courts have a direct link with the people who need their services; their views about the functioning of the courts, is a constant dynamic.”

The Court also overruled the decision in Vijay Kumar Mishra v. High Court of Judicature at Patna,(2016) 9 SCC 313 providing eligibility, of judicial officer to compete as against the post of District Judge by way of direct recruitment.

[Dheeraj Mor v. High Court of Delhi, 2020 SCC OnLine SC 213, decided on 19.02.2020]