Judicial Officer Who Completed 7 Year Practice At Bar Eligible For District Judge Direct Appointment : Petitioners Argue In Supreme Court [Day 1]

The 5-judge bench of Chief Justice of India BR Gavai, Justices MM Sundresh, Aravind Kumar, SC Sharma and K Vinod Chandran considered the matter.

The bench has been constituted after the 3-judge bench of Chief Justice of India BR Gavai, Justice K Vinod Chandran and Justice NV Anjaria passed an order on August 12, referring the matter to a larger bench

At the outset, Sr. Advocate Jayant Bhushan appeared for petitioners who had cleared the UP civil judge exams but, due to the High Court's rules, could not sit for the district judge exams. Bhushan stated the 4 issues of law that the present would be considering : 

(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?

(iii) Whether there is an eligibility prescribed for the persons already in the judicial services of the Union or State under Article 233(2) of the Constitution of India for being appointed as the district judge

(iv) A person who has been a judge for 7 years or has been an advocate and a civil judge for a combined period of 7 years or more could be appointed as a district judge?

Article 233 & The Contradiction By Dheeraj Mor Case: Bhushan Explains 

Referring to Article 233(2), Bhushan submitted that the decision in Dheeraj Mor v. Hon'ble High Court of Delhi would require reconsideration. 

In Dheeraj Mor(3-judge bench), the Court held that civil judges are not eligible to seek direct recruitment to the post of District Judges in the bar quota.

The Court further observed, "Article 233(2) nowhere provides eligibility of in-­service candidates for consideration as a District Judge concerning a post requiring 7 years' practice as an advocate or a pleader. Requirement of 7 years' experience for advocate or pleader is qualified with a rider that he should not be in the service of the Union or the State"

Notably, Article 233 reads : 

(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.

Bhushan stressed that in Dheeraj Mor, the court wrongly held that the phrase 'A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge' means that those in service as civil judge would be excluded from being appointed as a district judge. 

Justice Sundresh weighed in to add that it was crucial to keep in mind that within a constitutional provision, there could be exclusions and inclusions at the same time. He observed that the 7-year qualification may have been specifically mentioned to make it doubly sure of the eligibility for advocates, but the same may not apply to other candidates who too could be considered to the district judge appointments. 

"If someone wants to make it doubly clear that the advocate should have certain years while differentiating between the others, this 7-year qualification is not forcing on them; therefore, you can apply that this qualification of 7 years is only meant for lawyers and maybe it may not be meant for others, that is one way of arguing it." 

Bhushan also relied on the Constituent Assembly Debates on Article 233(2) and submitted that the intent of the provision was to lay down the qualifications of who could be appointed as a district judge. He said that as per the reading of the provision, the appointment is done in two ways: (1) direct recruitment; (2) promotion from the lower judiciary

He stressed that if the other side is contending that the 7-year rule means only those advocates in 7 years of practice, excluding those who are now serving as civil judges, then how would the civil judges get promoted? 

UP Judicial Rules Contrary To The Intention Of Article 233: Bhushan Submits 

During the hearing, Bhushan referred to Rule 5 of the UP Higher Judicial Service Rules 1975. Rule 5(c) provides that recruitment  for the service of a district judge should be "By direct recruitment from amongst the Advocates who have been, for not less than seven years, practicing as an Advocate, as on the last date fixed for the submission of application forms." 

Clause (a) specifies recruitment by promotion on the basis of the Principle of merit-cum-seniority and passing a suitability test and Clause (b) 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. 

Thus, Bhushan stressed that way virtue of Rule 5(c), candidates in service have been excluded from direct recruitment. 

Justice Sundresh added that indirectly, the Rule creates a reservation in favour of the advocates for being appointed by direct recruitment. 

Bhushan then emphasised that in the event the Court holds that Article 233(2) can be read to exclude civil judges in service, then the present High Court Rules "would be doing violence to the language of the constitution and the intention of the constitution makers". 

He added that it was crucial that the Court also set aside such a rule in case they hold the above. 

Sr Advocate Arvind Datar, appearing for one of the petitioners, who switched to practice after being a civil judge, stressed that paragraph 45 of the Dheeraj Mor required reconsideration. The said paragraph states : 

 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 practicing advocate and must be in practice as on the cutoff 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 cutoff 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 a minimum 7 years' experience

Datar stressed that the Court has, through this case, created two further conditions under S. 233(2) -(1) the 7-year practice rule means that the advocate needs to be in 7 years of practice in the 'immediate past'; (2) advocate should be in practice both while applying at the cut-off date and on the date of appointment. 

He added that the main issue before the Court is encapsulated under Issue no.4; but even if the Court rules that a person who has combined experience of an advocate and judge for 7 years can qualify under Article 233(2), the ratio laid down in Dheeraj Mor would still be in operation. 

"If you answer question no.4, then para 45 will still be the law under article 141, because what the court has said is that 7 years means 7 continuous years up to the date of cut-off, so the question is what is the meaning of immediate past?"

Phrase 'Has Been' Under Article 233(2) Cannot Mean Continuous Practice Of 7 Years: Sr Adv Patwalia Argues 

Sr Advocate PS Patwalia, appearing for one of the petitioners, contended that the 7-year practice rule for advocates under Art. 233(2) cannot be interpreted to mean 7 continuous years of practice as per Dheeraj Mor case. 

Patwalia referred to Article 233(2), relevant part "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

He stressed: "'Has been' is interpreted to mean a continuing process, a situation which has existed and is still continuing. Our submission is that 'has been' is not capable of that interpretation." 

He further exemplified that in several statutes which prescribe the eligibility of a Tribunal's chairperson/ member to be a former Supreme Court/ High Court, the phrase used is 'has been a judge', which does not mean that the provision allows a sitting judge to be appointed for the position. 

The counsel submitted, "If the interpretation that is given here is accepted, it would mean that a person who is a sitting judge."

Sr Advocates V Giri, Vibha Makhija and Jaideep Gupta also made brief submissions on the aspect that Article 233(2) does not create any quota for advocates to be directly appointed as district judges. 

The bench will continue the hearing tomorrow.

Why Was The Reference Made?

The Court passed the reference order in an appeal filed against a Kerala High Court judgment which set aside the appointment of a District Judge on the ground that, at the time of issuing the order of appointment, he was not a practising Advocate and was in judicial service, functioning as a Munsiff.

In 2021, the Supreme Court had stayed the High Court's judgment.

The appellant Rejanish KV was a practising lawyer having 7 years' experience in the Bar when he submitted his application for the post of District Judge. He was also an applicant for selection to the post of Munsiff/Magistrate and while the selection process of District Judge was underway, he was appointed as a Munsiff-Magistrate on 28/12/2017. After he got appointment order to the post of District Judge, he was relieved from the Subordinate Judiciary on 21/8/2019 and he took charge as District Judge, Thiruvananthapuram on 24/8/2019. Another candidate [K. Deepa] filed a writ petition before the High Court challenging his appointment contending that he was not eligible to be appointed as District Judge since at the relevant time when he was appointed as a District Judge, he was not a practising Advocate and was in judicial service, functioning as a Munsiff.

This writ petition was allowed by the Single Bench relying on a Supreme Court judgment in Dheeraj Mor v. High Court of Delhi in which it was held that an advocate who applies for the post of District Judge by way of direct recruitment should continue to be a practising Advocate until the date of appointment.

Though it upheld the Single Bench judgment, the Division Bench of the High Court observed that several appointments of District Judges may have been made across the country based on the Rules applicable in the respective States which may, as in the case of the Kerala Rules be contrary to the declaration of law in Dheeraj Mor. It, therefore, granted certificate to file appeal before the Supreme Court observing that matter involves substantial question of law of general importance.

Case: REJANISH K.V. vs. K. DEEPA [Civil Appeal No(s). 3947/2020] and other connected matters