Judicial Officers are not eligible for direct recruitment to post of District Judges against quota f

DHEERAJ MOR  v  HON’BLE HIGH COURT OF DELHI , CIVIL APPEAL NO. 1698 OF 2020 [ARISING OUT OF S.L.P. (C) NO.14156 OF 2015] – February 19, 2020.

CORAM: Two judge bench comprising of Justice Arun Mishra and Justice Vineet Saran.

The issue before this court is whether the interpretation of Article 233 of the Constitution of India, as to eligibility of members of the subordinate judicial service for appointment as District Judge as against the quota reserved for the Bar by way of direct recruitment. The petitioners who are in judicial service 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. Another category is that of the persons having completed only 7 years of service as judicial service. They contend that experience as a judge be treated at par with the Bar service, and they should be permitted to stake their claim. The third category is hybrid, consisting of candidates who have completed 7 years’ by combining the experience serving as a judicial officer and as advocate.

The argument of the Central is that Article 233(2) provides 2 sources of recruitment. One is from judicial service, and the other is from Bar which is laid down in Rameshwar Dayal v. State of Punjab & Ors AIR 1961 SC 816 and Chandra Mohan v. State of Uttar Pradesh & Ors (1967) 1 SCR 77. Satya Narain Singh v. High Court of Judicature at Allahabad & Ors (1985) 1 SCC 225 was referred to the controversy of the above case. In The High Court of Punjab & Haryana v. State of Haryana, (1975) 1 SCC 843 it was held that articles 233(1) and 233(2) inter alia deal with direct recruitment. All India Judges’ Association v. Union of India (2002) 4 SCC 247 overturned the earlier 2 constitutional bench judgments. All India Judges’ Association v. Union of India (2002) 4 SCC 247 held that the bar prescribed under Article 233(2) prohibits only the appointment of persons in service of Central/State Government. In Vijay Kumar Mishra & Anr. v. High Court of Judicature at Patna & Ors (2016) 9 SCC 313 it has been held that the bar prescribed under Article 233(2) prohibits only the appointment of persons in service of Central/State Government and not their participation in the recruitment process.

In The State of Assam and Anr. v. Kuseswar Saikia and Ors AIR 1970 SC 1616, this Court observed that both appointment and promotion are included in Article 233(1). Reference has been made to the decision in All India Judges’ Association v. Union of India and Ors (1992) 1 SCC 119. In All India Judges’ Association and Ors. v. Union of India and Ors (1998) 8 SCC 771, this Court has considered the question of permitting the Legal Assistants working in different institutions other than the courts for the purpose of appointments in the judiciary.

Justice S. RAVINDRA BHAT stated that;

The judge of this court referred the judgment of Arun Mishra, and agreed with his analysis. But there he added some additional reasoning as well in respect of the issue involved. In Rameshwar Dayal v. The State of Punjab & Ors. 1961 (2) SCR 874; Chandra Mohan v. The State of Uttar Pradesh and Ors. (1967) 1 SCR 77; Satya Naraian Singh v High Court of Judicature 1985 (2) SCR 112; Deepak Aggarwal v Keshav Kaushik 2013 (5) SCC 277 and felt that the observations in a judgment, Vijay Kumar Mishra & Anr v. High Court of Judicature at Patna & Others (2016) 9 SCC 313, necessitated a re-consideration on the issue. These set of petitioners strongly rely on the decision Mahesh Chandra Gupta v. Union of India and Ors. (2009) 8 SCC 273. Article 233(1) confers power upon the Governor to make appointments, subject to consultation with the High Court of the State.

Thus from the above observations the Justice 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 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.

The Court answered the reference as follows:

1.  The   members   in   the   judicial   service   of   the   State   can   be appointed   as   District   Judges   by   way   of   promotion   or   limited competitive examination.

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.

3. 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.

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.

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 233 of the Constitution of India.

6. The decision in Vijay Kumar Mishra (supra) providing eligibility, of judicial officer to compete as against the post of District Judge by way of direct recruitment, cannot be said to be laying down the law correctly. The same is hereby overruled.

View/Download the Judgment: DHEERAJ MOR v.  HON’BLE HIGH COURT OF DELHI.

– PRIYADHARSHINI R

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