Supreme Court: The 3-judge bench of SA Bobde, A.S. Bopanna and V. Ramasubramanian, JJ has dismissed the claim of certain District Judges to club their services rendered as advocates with the service rendered by them as Judicial Officers, for determining their eligibility for elevation as High Court judges.

Grievance of the petitioners

The Petitioners were duly selected and appointed as District Judges (Entry Level) by way of direct recruitment. Though they had not completed 10 years of service as Judicial Officers, as on date but at the time of their appointment as District Judges, they already practiced for more than 10 years as advocates.

The petitioners contended that despite being the senior­most in the cadre of District Judges, they have been overlooked and their juniors now recommended for elevation to the High Court as Judges This, according to the Petitioners, was done by the Collegium of the High Court solely on the application of Explanation (a) under Article 217(2) of the Constitution of India. The contention of the Petitioners is that to determine the eligibility of a person, sub-clauses (a) and (b) of clause (2) of Article 217 together with Explanations (a) and (aa) should be applied simultaneously.

What does Article 217(2) say?

(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and

(a) has for at least ten years held a judicial office in the territory of India; or

(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession;

Explanation for the purposes of this clause

(a) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an Advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law;

(aa) in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an advocate;

(b) in computing the period during which a person has held judicial office in the territory of India or been an advocate of High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947 , within India as defined by the Government of India Act, 1935 , or has been an advocate of any High Court in any such area, as the case may be.

Can sub­clauses (a) and (b) of Article 217(2) be clubbed?

The Court explained that Article 217(2) merely prescribes the eligibility criteria and the method of computation of the same. If a person is found to have satisfied the eligibility criteria, then he must take his place in one of the queues. There are 2 separate queues, one from judicial service and another from the Bar. One cannot stand in one queue by virtue of his status on the date of consideration of his name for elevation and at the same time keep a towel in the other queue, so that he can claim to be within the zone of consideration from either of the two or from a combination of both.

“Hopping on and hopping off from one queue to the other, is not permissible. Today, if any of the petitioners cease to be Judicial Officers and become Advocates, they may be eligible to be considered against the quota intended for the Bar. But while continuing as Judicial Officers, they cannot seek to invoke Explanation (a) as it applies only to those who have become advocates after having held a judicial office.”

The Court noticed that the Petitioners want the experience gained by them as advocates to be clubbed together with the service rendered by them as Judicial Officers, for determining their eligibility and once this clubbing is allowed, they would like to take advantage of their settled seniority position in the cadre of District Judges, over and above that of Respondents. In other words, the Petitioners want the best of both worlds.

Sub¬clause (b) of Clause (2) of Article 217 prescribes the number of years a person should have been an Advocate to become eligible for consideration. Therefore,

“if the petitioners want to be considered from the category as advocates, irrespective of their present status as judicial officers, they can always do so, provided they do not stand in the queue intended for judicial officers. The case of the petitioners, as on date falls under Article 217(2)(a) and not Article 217(2)(b).”

On the argument that clubbing should be permitted for contesting respondents as well

Calling this argument, a ‘self-serving argument’ of convenience, the Court said,

“If the argument of the petitioners is accepted and the contesting respondents are also granted the benefit of clubbing, they will be far seniors to the petitioners in terms of the total number of years of service both at the bar and in service. In such an event, the petitioners will not come anywhere near the zone of consideration (within the first 9 or 15).”

The Court explained that filling up the vacancies under the service quota, the collegiums of the High courts consider the ACRs and the judgments of the judicial officers, in the ratio of 1:3 or 1:5 or so. To undertake this exercise, the High courts maintain seniority lists of judicial officers. If there are vacancies to be filled up, the profile of 9 or 15 senior-most officers are considered. In every State, hundreds of judicial officers will satisfy the qualifying criteria, if the argument of the petitioners is accepted.

“Take for instance a case where a person is appointed as a District Judge after 10 years of practice at the Bar. If the contention of the petitioners is accepted, even such a person will be eligible from day one of his appointment as District Judge. Since all such persons cannot be considered for the limited number of vacancies, a seniority list is maintained and a particular number of officers are taken in the zone of consideration, depending upon the number of vacancies sought to be filled up under the quota.”

The cache in the argument of the petitioners is that for the purpose of seniority, they do not want any two services to be clubbed, but for the purpose of eligibility, they want even the practice at the Bar to be clubbed. “This is nothing but a self-serving argument.”

[R. Poornima v. Union of India, 2020 SCC OnLine SC 714, decided on 04.09.2020]

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