Civil Appeal No. 1698 of 2020
Judges: Arun Mishra, Vineet Saran and S. Ravindra Bhat
FACTS OF THE CASE
The cases have been referred to the present three-judge Supreme Court Division Bench. The interpretation of Article 233 of the Indian Constitution concerning the eligibility of subordinate judicial service members for appointment as District Judges in contrast to the quota set aside for the Bar through direct recruitment is at issue in this case. Three types of petitioners have filed cases with the court.
The petitioners fall into three distinct categories- Current Judicial Officers, this group consists of individuals who are currently serving within the judicial system. They contend that even though they are employed in the Union or State judicial systems, they should be eligible to claim the direct recruitment quota reserved for advocates under Article 233, provided they had completed seven years of practice as advocates before joining the judiciary. Judicial Officers with Seven Years of Service, the second group includes those who have served for seven years exclusively within the judiciary. They argue that judicial experience should be recognized on par with bar experience, and thus, they should be permitted to claim the recruitment quota allocated for advocates. Candidates with Hybrid Experience, the third group comprises individuals who have a total of seven years of combined experience as both advocates and judicial officers. They assert that their combined experience qualifies them to claim the direct recruitment quota intended for advocates.
Each group is challenging the current eligibility criteria and seeking a broader interpretation to accommodate their qualifications for the direct recruitment quota for District Judges.
ISSUES RAISED
- What reading of Article 233 of the Indian Constitution is correct?
- Are the rules prohibiting judicial officers from asserting their claim against positions designated for direct hiring from the bar considered excessively restrictive?
- Is it possible for members of the bar with seven or more years of experience to directly compete with officers in the state judicial system holding positions lower than those of district judges for the position of district judge?
CONTENTIONS
PETITIONER
Article 233(2) of the Constitution specifies two sources for recruitment to the position of District Judge: the judicial service and the bar. Accordingly, an individual currently serving in the judiciary who has previously practiced law for seven years before joining the service, or who has served as a judicial officer, may be eligible to claim positions designated for those with seven years of experience as an advocate or pleader.
Direct recruitment is covered under Articles 233(1) and 233(2) of the Constitution, among other things, as this Court’s Constitution Bench ruling in the High Court of Punjab & Haryana v. State of Haryana makes clear. The regulations established by multiple High Courts that prevent subordinate judges from being directly hired into the higher court are in conflict with the ruling in Chandra Mohan v. State of Uttar Pradesh and Ors. and Article 233’s requirements. The regulations that totally shut down one stream and offer just one direct recruitment stream would need to be deemed ultra vires, in violation of Article 233 of the Constitution.
The Rules for direct recruitment, established by various High Courts, are seen as discriminatory against advocates compared to judicial officers and are also considered to be arbitrary.
The Petitioners have also relied on the ruling in Vijay Kumar Mishra and Anr. v. High Court of Judicature at Patna and Ors. whereby it was determined that the applicable bar Article 233(2) of the Constitution forbids only the appointment of individuals working for the federal or state governments, not their involvement in the hiring process. Such individuals also have the constitutional right to take part in the selection process. If chosen, they have the option to accept the position and resign.
RESPONDENT
According to Article 233(2) of the Constitution, a candidate for a direct recruitment position may only be selected from the bar; they may not hold judicial office. All that can be done for them is publicise. They have the option to voluntarily join the lower judiciary. After then, they are only eligible for promotion to the higher judicial service in accordance with the regulations.
WHAT DOES THE LOWER COURT HOLD
The Honourable Delhi High Court determined that the current writ petition has no merit and should be dismissed without imposing costs on the petitioners based on a number of factors and arguments covered in the Writ Petition.
SUPREME COURT HELD
A three-judge bench, comprising Justices Arun Mishra, Vineet Saran, and S. Ravindra Bhat, has ruled that members of a state’s judicial service cannot claim vacancies in the District Judge cadre that are reserved for eligible advocates under Article 233 of the Indian Constitution. The court’s decision underscores that the appointment quota designated for practicing advocates does not extend to individuals already serving in the judicial service.
RATIONALE
Article 233(2) of the Indian Constitution stipulates that an individual must have at least seven years of practice as an advocate or pleader to be eligible for appointment as a District Judge, provided they are not currently employed by the Union. This provision establishes that those already serving in the judicial service are considered under a separate category and are not eligible for positions reserved for individuals with the requisite experience exclusively as practicing advocates or pleaders.
Justice Mishra, writing on behalf of himself and Justice Saran, held that
- Members of the State’s judicial service may be appointed as District Judges through limited competitive examination or promotion. This is because Article 233(2) nowhere grants in-service candidates the eligibility to be considered for consideration as a District Judge concerning a post requiring 7 years practice as an advocate or a pleader.
- When it comes to appointment, promotion, posting, and transfer, the governor of a state has the final say. Eligibility is determined by regulations outlined in Articles 234 and 235.
- If an advocate or pleader has seven years of experience and is not currently employed by the Union or a State as a judge, they may be appointed as district judges through direct recruitment under Article 232(2).
- An advocate must have been in practice for at least seven years on the deadline date and at the time of appointment as a district judge in order to be eligible for benefits under Article 233(2). Direct recruitment as a District Judge is not available to members of the judiciary who have served for seven years as practicing solicitors prior to joining the service, or who have served for seven years as both.
- The regulations established by the High Court, which forbid judicial service employees from directly applying for District Judge positions instead of those designated for Advocates, cannot be deemed to be beyond the bounds of Articles 14, 16, and 17 and 23 of Indian Constitution.
DEFECTS OF LAW
The default power in this case is the members of the judicial service of any state should be able to claim to be appointed for vacancies in the cadre of District Judge through some competitive examination. Judicial services employees should not be forbid from directly applying for district judge positions, as it is the violation of Article 14, 16, 17 and 23 of the constitution of India.
There should be competitive examination or other criteria for the appointment of member of judicial service for the district and high courts.
INFERENCE
Many have criticized this judgment as fundamentally flawed and believe it warrants reconsideration by a larger bench. It is recommended that an amendment be sought to address the appointment process for District Judges. According to Article 233, judicial officers are ineligible to apply or compete for vacancies in the District Judge cadre; their only pathway to such positions is through promotion, as specified under Article 234 and the proviso to Article 309 of the Indian Constitution. However, until this decision is overturned by a larger bench, it remains in effect and must be adhered to it.
But as long as the decision is not over ruled by a larger judge bench, this judgment shall prevail and shall be followed and obeyed.
By- ASHIKA JAIN
DELHI METROPOLITAN EDUCATION