Case BriefsHigh Courts

Kerala High Court: The Division Bench of C.T. Ravikumar and K. Haripal, JJ., partially allowed the instant appeal challenging the correctness of the orders of the District Judge whereby the District Judge had declined to interfere with the arbitral award.

Properties of the appellants were acquired by the National Highway Authority for the purpose of widening the Valayar-Vadakkanchery sector of NH 47 under a common notification and compensation was awarded by the Special Land Acquisition Officer. Special Land Acquisition Officer had granted a total compensation of Rs 2,65,252 to appellant 1 on the basis of comparable sales method while compensation of Rs 3,37,337 was awarded to the appellant 2. Being dissatisfied with quantum of compensation, the appellants invoked the arbitration clause. The arbitrator granted an additional compensation of Rs 1,04,449 as an enhancement, besides 9% interest on the enhanced amount from the date of dispossession to appellant 1 and an enhancement of Rs 1,67,215 and 9% interest on the additional compensation was granted to appellant 2. On being aggrieved by the order of the arbitrator, the appellants moved the District Court under Section 34 of the Arbitration Act. Later on, the instant appeal was filed against the order of District Judge.

The appellants contended that, the claims made were not properly considered by the Special Land Acquisition Officer and the Arbitrator, therefore, in order to prove the prevailing market value of the land and for quantifying the other damage suffered by them, they might be afforded one more opportunity and the matters might be remanded, enabling them to adduce further evidence.  The appellants argued that they had not been granted solatium and interest on solatium, which they were entitled to as per the decision in Paul Mani v. Special Deputy Collector and Competent Authority, 2019 SCC OnLine Ker 2700.

The Court observed, the argument of appellants that the claims were not considered by the authorities properly was factually incorrect as it was obvious from the orders passed by the Arbitrator, that even in the absence of the appellants producing supporting documents or proof, the Arbitrator had taken into consideration post-notification developments while granting enhancement in land value as well as the value of structures. As mentioned earlier, the Arbitrator had granted enhancement in compensation under all possible heads, making good the loss sustained by the appellants. The Court said, “It is the settled proposition of law that matters cannot be remanded back to the authority below in order to decide any question of fact which was not properly pleaded and no evidence was let in by the parties in support of the claim.” While reiterating settled proposition of law the Court said, having regard to the scope and ambit of Section 34 of the Arbitration Act that Court’s power is merely supervisory in nature and the Court cannot act as though exercising the appellate jurisdiction. The Court also expressed that, no power had been invested by the Parliament in the Court to remand the matter to the arbitral tribunal. Therefore, the demand for remitting the case back to the arbitrator was denied. On the contention of non-payment of solatium, the court relied on Union of India and Another v. Tarsem Singh, (2019) 9 SCC 304, wherein the Supreme Court had held, the provisions of the Land Acquisition Act 1894, relating to solatium and interest contained in Section 23(1A) and (2) and interest payable in terms of the proviso to Section 28 will apply to acquisitions made under the National Highways Act.

In view of the above, it was held that even in the absence of specific plea or proof, the appellants were entitled to claim solatium and interest on solatium under Section 23(1A) and (2) and interest in terms of the proviso to Section 28 of the Land Acquisition Act and the respondents were directed to quantify the amounts of solatium accordingly. [Eliyamma v. Deputy Collector, 2021 SCC OnLine Ker 80, decided on 07-01-2021]

Case BriefsDistrict Court

Karkardooma Court, Delhi: Every now and then we see judges quote famous poets, but have you ever come across an order that itself is in the form of a poetry? In a Bail order in a case related to the North-East Delhi communal riots that took place in the month of February, 2020, the Additional Sessions Judge Amitabh Rawat, Shahdara, Karkardooma Court, Delhi penned a poem to put forth his observations.

In the case where one Rahul, who suffered a gunshot injury, did not record his statement with the police as he gave a fake address in his MLC and became untraceable, accused Babu was arrested, along with another accused Imran. Stating that Babu stands on even a better footing than Imran who is already enlarged on bail, the Additional Sessions Judge found merit in the bail application and wrote:

“Babu pleading for his bail;

State opposing tooth and nail.

Summers bygone, winters have arrived;

But crime you did, and Rahul cried.

I am not the one, I am not the one;

Too grave the charge, don’t pretend.

Whom did I attack, where is he;

Oh! That we know, in the trial we will see.

You say I have said & I deny from the first blush;

Rahul may be gone yet Satish said.

Didn’t we say; don’t rush;

Let me go, let me go, even Imran is on bail.

Even then, even then;

it wouldn’t be a smooth sail.

Stop! Stop! Stop! Stop;

I have heard, heard a lot.

Mind is clear, with claims tall;

Its my time to take a call.

Babu has a sordid past;

proof is scant, which may not last.

His omnipotence can’t be assumed;

Peril to vanished Rahul, is legally fumed.

Take your freedom from the cage you are in;

Till the trial is over, the state is reigned in.

The State proclaims; to have the cake and eat it too;

The Court comes calling ; before the cake is eaten, bake it too.”

 

Hence, the accused Babu was granted bail on furnishing of personal bond in the sum of Rs. 10,000/with one local surety of the like amount and it was further directed:

a) The accused shall neither leave the jurisdiction of NCT of Delhi without prior permission of the court nor shall he indulge in any kind of criminal activity.

(b) He shall also not tamper with any evidence or contact any witness;

(c) He shall attend the court on every date of hearing or as directed by court.

[State Vs. Babu, Bail Application No. 16232020, order dated 07.11.2020]

Case BriefsSupreme Court

Supreme Court: In a case where a man was tried for and later acquitted from charges under Section 498A/406/34 IPC, the bench of Ashok Bhushan and MR Shah, JJ held that the apprehension that a stigma shall continue with the name of the appellant is misconceived, as stigma, if any, is already over by acquittal.

The appellant had challenged the order of the Principal Secretary, Madhya Pradesh, Law and Legislative Department declaring him ineligible for being appointed to the post of District Judge (Entry Level) and had sought reconsideration by the High Court of Madhya Pradesh. On this the Court said that the mere fact that subsequently after more than a year when the person whose candidature has been cancelled has been acquitted cannot be a ground for reconsideration of his application by the High Court.

Brief facts of the case

The appellant submitted an online form after the High Court of Madhya Pradesh issued an advertisement dated 09.03.2017 inviting applications for recruitment in the post of District Judge(Entry Level) in the cadre of Higher Judicial Service by Direct Recruitment from amongst the eligible Advocates.

  • The appellant after being declared successful in the Main Examination was called for interview.
  • The appellant received a communication on 06.04.2018 from the Law and Legislative Department informing that he has been selected for the post of District Judge (Entry Level). He was asked to appear before the Medical Board for the health tests.
  • On 02.07.2018, the copy of the FIR filed against him by his wife in the year 2014 under Section 498/406/34 IPC was asked for.
  • On 14.09.2018, order was issued by the Principal Secretary, Madhya Pradesh, Law and Legislative Department declaring the appellant ineligible and directing for deletion the name of the appellant from the select list.
  • The Government also issued a Gazette notification deleting the name of the appellant from the main select list.
  • On 18.09.2019, the appellant was acquitted of the charge framed against him in the aforementioned criminal case registered against him by his wife.

Arguments advanced before the Supreme Court

It was argued before the Court that appellant having disclosed the lodging of FIR against him has not concealed any fact before the High Court and he, having been selected on merit, was entitled to be appointed. On the subsequent acquittal of the appellant on 18.09.2019 his case for appointment was to be reconsidered by the High Court and the High Court committed an error in not considering the appellant for appointment. The candidature of the appellant could not have been cancelled merely on the ground of pendency of criminal case.

“The appellant could not have been deprived of the employment after acquittal. There was no other material on record to indicate that antecedent or conduct of the appellant was not upto the mark. The High Court ought to have sent the matter back before the Higher Judicial Service and Examination-cum-Selection Committee for reconsideration.”


WHAT THE COURT SAID


On validity of the order declaring the appellant ineligible

The Court, however, noticed that the present is not a case where the name of the appellant was deleted in the select list on the ground of any concealment of criminal case against him. The name of the appellant was included in the select list which was forwarded to the State. The State after character verification submitted a report which report was considered on 18.07.2018 by the Administrative Committee (Higher Judicial Service) and Examination-cum-Selection and Appointment Committee and a resolution was taken that due to pendency of the case under Section 498A, 406-34 IPC on the basis of complaint filed by the wife, the appellant is not considered suitable for being appointed to the post of District Judge.

Stressing of the requirement that after declaration of the merit list the candidates have to be given appointments in time bound manner so that they may join the respective posts, the Court noticed that on the date when the Committee declared the appellant unsuitable, criminal case against him under Section 498A and 406 IPC was pending which was registered on a complaint filed by the appellant’s wife.

“The mere inclusion in the select list does not give an indefeasible right to a candidate. The employer has right to refuse appointment to the candidate included in the select list on any valid ground. The persons who occupy Judicial Service of the State are persons who are expected to have impeccable character and conduct.”

The character verification report was received from the State where pendency of the criminal case was mentioned which was the reason for the Committee to declare the appellant unsuitable.

On reconsideration of application by High Court after acquittal of the appellant

“In the present case the acquittal having taken place after the close of recruitment process, there was no question of examining the acquittal order by the High Court at the time of finalizing the selection process.”

The Court noticed that there can be no dispute that in event it is found that decision by which the candidature of a candidate is rejected is arbitrary or actuated by malafide such decision can be interfered by the Constitutional Courts. However, the decision of Examination-cum-Section and Appointment Committee for holding the appellant unsuitable was based on the relevant consideration, i.e., a criminal case against the appellant under Section 498A/406/34 IPC was pending consideration which was registered on a complaint filed by the wife of the appellant.

“Such decision of the Committee was well within the jurisdiction and power of the Committee and cannot be said to be unsustainable. The mere fact that subsequently after more than a year when the person whose candidature has been cancelled has been acquitted cannot be a ground to turn the clock backward.”

On stigma attached with appellant’s name

It was argued before the Court that due to deletion of the name of appellant from select list a stigma is attached to him, for removal of which this Court may issue notice in this SLP. The Court, however, said that the appellant having already been acquitted by the judgment dated 18.09.2019 stigma of criminal case has already washed out and the criminal case having resulted in acquittal no stigma is attached to the appellant’s name on the above ground.

[Anil Bhardwaj v. High Court of Madhya Pradesh, 2020 SCC OnLine SC 832, 13.10.2020]

Case BriefsSupreme Court

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]

Hot Off The PressNews

Supreme Court: The bench of Deepak Gupta and Aniruddha Bose, JJ  has dismissed a plea by a district judge challenging the appointment of a ‘junior’ judicial officer as an additional judge of the Karnataka High Court and seeking a stay on his swearing-in contending that it breaches the seniority rule.

The bench took up the matter through video conferencing at 10 am, just half an hour before the scheduled swearing-in of judicial officer Padmaraj N Desai as an additional judge of the Karnataka High Court and dismissed it saying the Court cannot entertain such plea at the eleventh hour. The Court said that it generally does not interfere with the President’s order on appointment of judges at the eleventh hour.

Shivamogga principal district judge RKGMM Mahaswamiji has challenged the appointment of judicial officer Padmaraj N Desai as additional judge of the Karnataka High Court on the ground of seniority. The plea of Mahaswamiji said,

“It is a case of superseding/passing over of a senior District judge (who was appointed on February 25, 2008, under reserve category ie., schedule caste) by junior district judge and recommendation of Respondent No. 11 (P N Desai) by the collegium of Karnataka High Court is unlawful, arbitrary, and in clear violation of statutory rules / administrative instructions contained in the official memorandum dated October 9, 1985, and involved bias of malafide and it clearly violated the functional rights guaranteed to the Petitioner under Articles 14 and 16 of the Indian Constitution.”

He had said that if the interim relief of staying the swearing-in ceremony of judicial officer Padmaraj N Desai as an additional judge of Karnataka High Court is not granted then the purpose of the petition will be defeated and it may cause failure of complete justice and clear infraction of fundamental rights guaranteed to the petitioner under Articles 14 and 16 of the Constitution.

According to the notification issued by the registrar general of the Karnataka High Court, Justice Shivashankar Amarannavar, Justice Makkimane G Uma, Justice Vedavyasachar Srishananda, Justice Hanchate Sanjeevkumar and Justice Padmaraj N Desai, were to take oath of additional judges of Karnataka High Court at 10.30 am.

(Source: PTI)

Case BriefsSupreme Court

Supreme Court: The bench of UU Lalit and Vineet Saran, JJ has held that the inter se placement of the candidates selected to the Cadre of District Judge through Limited Competitive Examination (LCE) must be based on merit and not on the basis of the seniority in the erstwhile cadre.

The Court arrived at the aforementioned finding while dealing with the challenge to the Report of the Committee of five Judges of the Rajastha High Court under the Chairmanship of the Chief Justice of the High Court.

The report dated 15.03.2019 stated,

“merit of those promoted through LCE should by virtue of Rule 32(2) be considered as the benchmark for promotion, inter-se seniority amongst them in the feeder cadre being maintained by prescription of Rule 47(4), subject to the exception that if an officer by regular method of promotion is able to otherwise secure promotion in the same year in the regular line on his turn and on that basis he gets a higher placement in the seniority, regardless of his selection in the LCE, he should not be put to a disadvantageous position and allowed to retain his position in the seniority based on his regular promotion. In other words, such officer would be entitled to retain seniority, either on the basis of LCE or on the basis of regular promotion, whichever is more beneficial to him.”

Placing reliance on Rule 47(4), the Committee in its Report dated 15.03.2019 held that the inter se seniority of persons promoted to the District Judge Cadre in the same year ought to be the same as it was in the posts held by them at the time of promotion.

Rule 47 (4) of 2010 Rules reads as,

“Inter-se seniority of persons promoted to the District Judge cadre in the same year shall be the same as it was in the post held by them at the time of promotion.”

Whereas Rule 31(2) of the 2010 Rules states,

“Twenty five percent posts in the cadre of District Judge shall be filled in by promotion from Senior Civil Judges strictly on the basis of merit through limited competitive examination conducted by the Court.”

Rule 31(2) of Rajasthan Judicial Service Rules, 2010 uses the expression “strictly on the basis of merit” while dealing with posts to be filled in through LCE. The merit is to be assessed in terms of the scheme laid down in the relevant Schedule. After considering various parameters stated in said Schedule, the successful candidates are selected on the basis of merit. The list of successful candidates becomes the basis for final selection subject to qualifying parameters such as suitability, medical fitness etc.

Holding that the High Court, in its Report dated 15.03.2019, completely failed to appreciate the true character of LCE and reservation of certain quota for that category, the Supreme Court said that the general principle appearing in Rule 47(4) must give way to the special dispensation in Rule 31(2) of 2010 Rules.

The Court explained that if the list is to be drawn up according to merit, it is possible that the last person in the list of selectees may be the senior most and going by the Report of the Committee, if all the selectees are promoted in the same year such last person may as well be at the top of the list of promotes through LCE. In that event, the seniority shall become the governing criteria and the excellence on part of a comparatively junior candidate may recede in the background.

“Instead of giving incentive to comparatively junior and other officers, the entire examination process will stand reduced to a mere qualifying examination rather than a competitive examination affording opportunity to meritorious candidates. The criteria shall then become seniority subject to passing the LCE.”

The Court, hence, directed:

“the seniority list issued in terms of Report dated 15.03.2019 shall stand modified only to the extent that appropriate placement to the candidates selected through LCE be given on the basis of their merit in the examination and not on the basis of their seniority in the erstwhile cadre. Let the appropriate changes be made within four weeks of this Judgment.”

[Dinesh Kumar Gupta v. High Court of Judicature of Rajasthan, 2020 SCC OnLine SC 420 ,decided on 29.04.2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of L. Narayana Swamy, CJ and Jyotsna Rewal Dua J. dismissed both writ petitions filed by the petitioners.

The instant case is represented by the counsel Devender K. Sharma for petitioners; and Bipin C. Negi with Komal Chaudhary for Respondent 1, Ashok Sharma with J.K. Verma, Adarsh K. Sharma, Ritta Goswami and Nand Lal Thakur, for Respondent 2 and K.D. Shreedhar with Shreya Chauhan for Respondent 3.

In the instant case, High Court of Himachal Pradesh issued a notification dated 16-04-2019 inviting applications from eligible candidates for appointment as Additional District and Sessions Judges in H.P. Judicial Service in the cadre of District Judges/Additional District Judges. The petitioners have been working as Senior Sub Judges/Additional Chief Judicial Magistrate and Central Project Coordinator, respectively, since 22-04-2019 and having more than seven years of experience as Judicial Officers and also as Advocates before becoming Judicial Officers, and in terms of Article 233 (2) of the Constitution of India, the time spent as an Advocate in the Bar considering them eligible in view of the total period spent by them in the legal profession and judicial service submitted their respective applications. The respondent High Court rejected the eligibility of the petitioners; hence, the two writ petitions have been filed, in one seeking directions to respondent 1 to accept the petitioners’ candidatures for H.P. Higher Judicial Services Examination and a another a writ of mandamus to amend Rule 5 (c) of the H.P. Higher Judicial Services Rules, 2004 and also the Notification dated 16-04-2019 for the direct recruitment of District Judges 2019, being inconsistent with Article 233 (2) of the Constitution of India and violative of Articles 14, 16 and 21 of the Constitution.

The Court relied on the Judgment given in Dheeraj Mor v. High Court of Delhi, 2018 4 SCC 619, that the members of judicial service having a combined experience of seven years as lawyer and member of judiciary, are not eligible to apply for direct recruitment as a District Judge.

In addition to the aforesaid position, it would be pertinent to state paragraph no. 47 of the said judgment:

(iv) For the purpose of Article 233 (2), an Advocate has to be continuing in practice for not less than 7 years as on the cutoff 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 of having combined experience of 7 years as lawyer and member of judiciary are not eligible to apply for direct recruitment as a District Judge.

(v) The rules framed by the High Court prohibiting judicial service officers from staking claim to the post of District Judge against the posts reserved for Advocates by way of direct recruitment, cannot be said to be ultra vires and are in conformity with Articles 14, 16 and 233 of the Constitution of India.”

In light of the facts and grounds discussed hereinabove, the Court held that both the petitions hold no merit and should be dismissed. [Dhiru Thakur v. High Court of Himachal Pradesh, 2020 SCC OnLine HP 275, decided on 25-02-2020]

Case BriefsSupreme Court

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]

Case BriefsHigh Courts

Sikkim High Court: Bhaskar Raj Pradhan, J. confirmed a decree of eviction passed against the appellant-tenant by the District Judge on the bonafide requirement of the landlord.

The sole ground for eviction being contended in the application was the requirement of suit premises for the personal occupation of the landlord. Under the relevant statutory notification, the landlord could evict the tenant only on showing the bonafide requirement for personal occupation. A holistic reading of the plaint suggested that the landlord required the suit premises as his house was in a dilapidated condition; his ill health including mental illness for which he desired to accommodate a help; to accommodate his growing children who did not have adequate personal space in the house and who were pestering him for it which was causing him mental stress; to establish them in business as they were completing their education; etc.

The appellant -tenant was represented by Laxmi Chakraborty and Manju Rai, Advocates. Per contra, Zangpo Sherpa, Deven Sharma, Jushan Lepcha and Mon Maya Subba, Advocates represented the respondent-landlord.

On perusal of the record, the High Court found the facts as claimed of the landlord to be true. Referring to its earlier case in Pradeep Golyan v. Durga Prasad Mukhia, 2016 SCC OnLine Sikk 225, the Court observed: “That personal occupation of the landlord includes the requirement of the dependents as well is now well settled.” The landlord pleaded hardship and proved it. He proved a bonafide requirement of personal occupation. Furthermore, the appellant did was unable to show any special equities in his favour against the eviction.

In such circumstances, the Court confirmed the decree of eviction passed by the District Judge. However, considering the fact that the appellant was in occupation of the suit premises and doing his business from there since 1999, he was given four months’ time to vacate the suit premises on the condition that he will continue to pay rent till then. [Bishnu Prasad Bhagat v. Prakash Basnett, 2019 SCC OnLine Sikk 84, decided on 15-06-2019]

Case BriefsHigh Courts

Rajasthan High Court: Sanjeev Prakash Sharma (V.J.), J. passed an order for the formation of the committee at the district level in order to resolve the dispute between the police and Advocate without taking the matter to the High Court.

The Court noted certain events which took place at the police station resulting in harassment and manhandling of an advocate and thus a Commissioner of Police and Police Comissionerate were called upon and were asked to submit the report with regard to the said incident.  The reports were sent by the Police Commissioner to the Government Advocate in which it was submitted that the concerned Assistant Sub-inspector had been removed and inquiry was being conducted against the Assistant Commissioner of the police.

N.A. Naqvi, submitted that such incident relating to advocates going to various police stations in the districts are being noticed time and again and the advocates apprehend that they are not being properly attended by the police officials and they were being harassed and intimidated. It was suggested that the Coordination Committee be formed in each district so that such type of matter may be handled properly in various districts and dispute between the police authorities and the advocates may not arise in future.

Rajendra Yadav, Government Counsel agreed and submitted that there should not be any conflict between two main pillars of administration of law and order namely police as well as the lawyers and states that Committee in this regard shall be formed in each district and effective powers shall be provided to such Committee to take action in this regard.

The Court after submission held that as there exists a committee at the High Court, the court suggested that Coordination Committee at each district level should be functioning so that the matters may not have to travel up to the high court with regard to issues which can be sorted out at the level of the district alone.

The case was kept open for further orders and suggestion on the formation of the committee which according to the court should include one Official from the concerned police department so that the matter can be examined impartially. The Chairmanship of such a Committee should be given to either the District Judge of the concerned district or to any retired High Court Judge, if need so arises.[Bharat Yadav v. State of Rajasthan, 2019 SCC OnLine Raj 782, decided on 07-06-2019]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Pankaj Mithal and Prakash Padia, JJ. contemplated a writ presented by retired District Judge and member of U.P. Higher Judicial Service.

Minimal facts relevant for purpose of appreciation are that the petitioner was aggrieved by the impugned order passed by the Governor of U.P. in 2015, which held 50% of pension on the recommendation of the High Court. As a District Judge, he had a duty to conduct the exam for Class III and IV employees with the help of independent committees in 2004. The results of aforementioned exams were challenged by several candidates and the same result was quashed and the petitioner was fined which was, later on, waived off.

Later on, the petitioner was charged for misconduct and foul play. The High Court directed an internal inquiry in the matter and subsequently, he was found guilty and as a punishment, 50% of the petitioner’s pension was withheld.

The learned counsel for the petitioner, Ashok Khare, submitted that an incident which took place 4 years ago cannot be the basis of disciplinary proceedings. Hence, such allegations were not maintainable. He further brought the attention of the Court with regard to holding an inquiry against the recruitment of class IV employees was not sustainable by the sanction of the Governor. He contended that other judicial officers were accused in the same matter and same charges were leveled against them too, but Inquiry Judge submitted a common report where the petitioner was only named guilty whereas all others were exonerated. He vehemently stated that findings recorded by the Inquiry Judge were contrary to the findings returned by the Division Bench on the judicial side and cannot be sustained.

Manish Goyal, learned counsel for the respondent, had defended the punishment order by contending that the sanction of the Governor was not under challenge and that no findings of the Inquiry Judge were in conflict with the findings returned on the judicial side. The disciplinary proceedings were drawn against the petitioner well within time and that if some other officers had gone unpunished, it does not mean that the petitioner is innocent and the punishment inflicted upon him was illegal or discriminatory in nature. The counsel relied upon the law which stated under Section 351-A of Civil Service Regulation, that “the departmental proceedings can be initiated against a retired employee only with the sanction of the Hon’ble Governor and that too only in respect of an incident which had taken place not more than 4 years earlier to the institution of such proceedings.”

The Court opined that, the inquiry which was conducted against the petitioner in respect of charges of misconduct in the recruitment of Class-IV employees was not only barred by limitation but was also without the sanction of the Governor as contemplated under Article 351-A of the CSR. A common inquiry report was submitted against other judicial officers, holding all of them to be guilty. The Court observed that, Inquiry Judge has not differentiated between the role of the petitioner and that of the other judicial officers and had collectively found all of them to be guilty. In view of the above, all the charged officers stood on the same pedestal and were not differently located.

The Court observed the submission of the respondent, that it was not a case of discrimination and the petitioner cannot claim negative equality. “If some other officers have been left unpunished, it is no ground to leave the petitioner also”. Accordingly, the gravity of the misconduct was reduced and the punishment ex-facie was held, excessive and disproportionate to the charge proved. Further it was held, “The petitioner in his capacity as a District Judge or as the Appointing Authority rightly played the role of a supervisor and kept on guiding the officers and on being satisfied that the selection process had been conducted in a fair and a clean manner and that there is no discrepancy or illegality in the preparation of the result approved for its declaration. Therefore, the satisfaction recorded by the District Judge in no way means that he had played some kind of pivotal role in the illegality, if any, committed in the entire recruitment process.” Thus, the punishment was quashed.[Shyam Babu Vaish v. State of U.P., 2019 SCC OnLine All 2215, decided on 22-05-2019]

Case BriefsHigh Courts

Sikkim High Court: The Bench of Vijai Kumar Bist, CJ, disposed of a transfer petition in which the District Judge, Special Division- I, Sikkim wanted to recuse himself from a case as his father had appeared in respect of the same subject-matter.

District Judge had passed an order while referring the matter to High Court on being informed that his father had appeared for the same subject matter involved in the appeal for the State-respondent in the said case.

The High Court on considering the facts and circumstances of the case, referred to the decisions of Supreme Court in Supreme Court Advocates-On-Record Assn. v. Union of India, (2016) 5 SCC 808,

“A Judge can recuse a matter, if a Judge has a financial interest in the outcome of a case. In such cases, he is automatically disqualified from hearing the case. In cases where the interest of the Judge is other than financial, then the disqualification is not automatic but an enquiry is required where the existence of such an interest disqualifies the Judge tested in the light of either on the principle of “real danger” or “reasonable apprehension”.

Another decision of the Apex Court relied on by the Court was, Trishala v. M.V. Sundar Raj, (2010) 15 SCC 714, in this case, the Supreme Court held that, it cannot be said simply because the learned Judge whilst at the Bar was a Standing Counsel for Municipal Corporation, he is precluded either in law or on propriety from hearing any case in which a Corporator is a party in his personal capacity.

Therefore, the Court while concluding its decision, stated that the ground mentioned of District Judge’s father appearing for the same subject matter earlier was no ground for recusal from the case as, the District Judge was at no point involved in any manner with the case, he was not appearing for any of the parties.

Father of District Judge appeared in his private capacity and District Judge had nothing to do with the said case.

When can a Judge recuse?

  • A Judge can recuse when he or his family member’s interest is involved in the case.
  • He can recuse when his close relative is a party in the
  • If one of the parties is known to him and is closely associated with him.
  • He can also recuse if he had earlier appeared as an Advocate for one of the parties.
  • If earlier any legal opinion was given by a Judge in the matter or has financial interest in the litigation, he can recuse.

In view of the above, application sent by District Judge, Special Division-I, Sikkim was rejected and transfer petition was disposed of. [Mahesh Chettri v. State of Sikkim, 2019 SCC OnLine Sikk 15, Order dated 23-03-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: The 2-Judge Bench comprising of S.K. Seth, CJ and Vijay Kumar Shukla, J. gave an order in pursuance of a challenge made to an order passed wherein the selection of petitioners for appointment on the post of District Judge (Entry Level) has been cancelled.

In the present case, the petitioners were selected for the appointment on the post of District Judge (Entry Level) pursuant to the process of selection conducted by the High Court for M.P. Higher Judicial Service (Entry Level) Direct Recruitment from Bar, Examination 2017 was cancelled.

According to the contentions placed, it has been stated that the petitioner was included in the final select list under the “unreserved category” candidates. However, by the impugned order the name of the petitioner was deleted. Further, on the basis of the information received under RTI Act, it was revealed that the selection cancelled was due to the pendency of a criminal case under Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Mr K.C. Ghildiyal, Advocate for the petitioners submitted that after the decision by the committee, charge in the pending criminal case had been quashed by the High Court in Deep Narayan Tiwari v. State of M.P., Criminal Appeal No. 5351 of 2018 , in which it was stated that “ he has been discharged from the offence under Sections 506 and 385 of the Penal Code, 1860 and under Sections 3(1)(r) read with 3(2)(v)(a) of Atrocities Act, 1989.”

Further the point to be noted in the present case in regard to the pendency of the criminal cases is that, the meeting of the committee in which the petitioner was discharged of the charges was held on 18-07-2018, whereas the order of the High Court in Deep Narayan Tiwari v. State of M.P., Criminal Appeal No. 5351 of 2018, was passed on 10-08-2018, which clarifies the point that on the date of appointment of the petitioners, the criminal cases were still pending against them.

“Mere selection would not confer any right as appointment is always subject to character verification of a selected candidate”.

Reliance was placed on by the High Court on State of M.P. v. Abhijit Singh Pawar, 2018 SCC OnLine SC 2555, in which Supreme Court held that: an employer can certainly take into account the job profile for which the selection is undertaken, the severity of the charges levelled against the candidate and whether the acquittal in question was an honourable acquittal or was merely on the ground of benefit of doubt or as a result of composition. Next in the case of Ashutosh Pawar v. High Court of M.P., 2018 (2) MPLJ 419, “a question was referred- whether acquittal in criminal cases is proof of good conduct.”

Thus taking into consideration the decisions as stated above on which the bench placed its reliance, held that there is no merit in the present writ petitions due to which they are to be dismissed. [Deep Narayan Tiwari v. State of M.P., 2018 SCC OnLine MP 967, Order dated 11-12-2018]

Case Briefs

High Court is the body which is intimately familiar with efficiency and quality of officers, fit to be promoted as District Judges.

Delhi High Court: The Division Bench comprising of S. Ravindra Bhat and Sunil Gaur, JJ., addressed a petition of a senior Delhi Higher Judicial Service DHJS Officer in regard to “new criteria for appointment to the position of District and Sessions Judge.”

The grievance that the petitioner placed before the Court was that her Fundamental Right to Equality has been violated due to the adoption of resolution evolving new criteria for appointment to the position of District and Sessions Judge by the Full Court of the Delhi High Court. In accordance to the criteria now there was a requirement of “A” grading in each of the previous years of ACR appraisals.

The contentions submitted by the petitioner were that pursuant to the changes in the earlier adopted 2009 Resolution concerning the appointment to the position of District and Sessions Judge, it had adversely affected the progression prospects of many Additional District Judges and now it had affected the petitioner too. Further, she alleged that she was kept in dark regarding the changes made to the resolution as it was never communicated to her. The whole move of modification would jeopardize the promotion prospects in the Higher Judicial Services and also violate Article 16 of the Constitution of India. The next contention put forward was, that Rule 27 of DHJS Rules is arbitrary and unprincipled and was unsustainable.

The High Court, concluding the matter stated above analysed both the issues placed by the petitioner. Petitioner’s grievance with respect to her lack of knowledge or not being aware was not justified and stating that “her judicial work was not up to the mark on the basis that she did not know that the best performance would result in selection of District Judge” is something not to be heard by the Court as “service in a judicial department is a mission, given the solemn nature of judging.” Therefore, the Court found no substance in any of the contentions of the petitioner and dismissed the petition by laying down a 5 pointer note to be kept in mind by the appraisal evaluation authorities, which was as follows:

  • Judicial officer concerned should be award out of 100 marks maximum.
  • 100 marks shall be done with a break up of –
  • 20% for quality of judgments.
  • 25% may be awarded for the institution/disposal ratio.
  • Maximum 20% may be awarded for the total number of final judgments delivered in the contested matters.
  • Maximum of 10% for timeliness, promptness in delivery of judgments.
  • 25% by the appraising High Court judge/committee on the basis of interaction/inspection.
  • Allowance should be given wherever the judicial officer is assigned burdensome administrative tasks.
  • No officer should be subject to appraisal of any one judge or committee for more than 2 Consecutive years.
  • Instructions to be issued to the appraising judges/committees to forward instances of outstanding or poor judgments for due consideration and input for the ACR appraisal.

The petition was disposed of on the note that the abovestated directions in respect to the formulation of criteria for uniform grading of judicial officers be suitably incorporated.[Sujata Kohli v. High Court of Delhi,2018 SCC OnLine Del 1069, decided on 21-08-2018]

Case BriefsSupreme Court

Supreme Court: Deciding the question as to whether the order passed by the City Civil Court in exercise of power under Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, as an Appellate Officer, is in the capacity of a Civil Court or persona designate, the 3-judge bench of Dipak Misra, CJ and Amitava Roy and AM Khanwilkar, JJ held:

“the Appellate Officer while exercising power under Section 9 of the 1971 Act, does not act as a persona designata but in his capacity as a pre-existing judicial authority in the district (being a District Judge or judicial officer possessing essential qualification designated by the District Judge).”

It was said that being part of the district judiciary, the judge acts as a Court and the order passed by him will be an order of the Subordinate Court against which remedy under Article 227 of the Constitution of India can be availed on the matters delineated for exercise of such jurisdiction.

Explaining the provision under Section 9 f the Act, the Court said:

“when the Appellate Officer is either the District Judge of the district or any another judicial officer in that district possessing necessary qualification, who could be designated by the District Judge, the question of such investiture of power of an appellate authority in the District Judge or Designated Judge would, by no standards, acquire the colour or for that matter trappings of persona designate.

Explaining further, the Court said that the District Judge or Principal Judge exercises judicial power of the State and is an authority having its own hierarchy of superior and inferior Courts, the law of procedure according to which it would dispose of matters coming before it depending on its nature and jurisdiction exercised by it, acting in judicial manner. Hence, the District Judge/Principal Judge of the City Civil Court and other judicial officers of these Courts possessing necessary qualifications constitute a class and cannot be considered as persona designata. The Appellate Officer, therefore, has to function as a Court and his decision is final in terms of Section 10 of 1971 Act. The Bench said:

“The legislative intent behind providing an appeal under Section 9 before the Appellate Officer to be the District Judge of the concerned District  Court in which the public premises are situated or such other judicial officer in that district possessing necessary qualification to be designated by the District Judge for that purpose, is indicative of the fact that the power to be exercised by the Appellate Officer is not in his capacity as persona designata but as a judicial officer of the pre-existing Court.”

[Life Insurance Corporation of India v. Nandini J. Shah, 2018 SCC OnLine SC 142, decided on 20.02.2018]