DHEERAJ MOR versus HON’BLE HIGH COURT OF DELHI on 23 January 2018

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C1. The issues raised in these petitions pertain to the interpretationof Article 233 of the Constitution of India in the matter of appointment ofDistrict Judges by way of direct recruitment.

2. The petitioners have raised mainly two contentions - (i) in casea candidate has completed seven years of practice as an advocate, he/Dshe shall be an eligible candidate despite the fact that on the date of theapplication/appointment, he/she is in the service of Union or State; (ii)the members who are in judicial service as Civil Judge, Junior Divisionor Senior Division, in case they have completed seven years as JudicialOfficers or seven years as Judicial Officer-cum-Advocate, they shouldbe treated as eligible candidates.E

3. Extensive reference has been made to various judgments ofthis Court which pertain to Article 233 of Constitution of India. To providea complete picture of the matter, we shall briefly discuss the relevantcases.

4. The case of Rameshwar Dayalv. State of Punjab and others1Fpertains to eligibility for appointment as District Judge counting also theperiod of practice in Lahore High Court, before partition. At paragraphs11 and 13, this Court made the following observations:

“11. This is the background against which we have to considerthe argument of learned Counsel for the appellant. Even if weGassume without finally pronouncing on their correctness thatlearned Counsel is right in his first two submissions, viz., that theword “ advocate” in Cl. (2) of Art. 233 means an advocate of aCourt in India and the appointee must be such an advocate atthe time of his appointment, no objection on those grounds canH1 AIR 1961 SC 816

be raised to the appointment of three of the respondents whowere factually on the roll of Advocates of the Punjab High Courtat the time of their appointment; because admittedly they wereadvocates in a Court in India and continued as such advocatestill the dates of their appointment. The only, question with regardto them is whether they can count. in the period of seven yearstheir period of practice in or under the Lahore High Court…”

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13. … It is perhaps necessary to add that we must not beunderstood to have decided that the expression ‘has been’ mustalways mean what learned Counsel for the appellant says it meansaccording to the strict rules of grammar. It may be seriouslyquestioned if an organic Constitution must be so narrowlyinterpreted, and the learned Additional Solicitor-General hasdrawn our attention to other Articles of the Constitution like Art.5(c)where in-the context the expression has a different meaning.Our attention has also been drawn to the decision of the AllahabadHigh Court in Mubarak Mazdoor v. K. K. BanerjiAIR 1953 All323 where a different meaning was given to a similar expressionoccurring in the proviso to sub-sec. (3) of S. 86of theRepresentation of the People Act, 1951. We consider itunnecessary to pursue this matter further because the respondentswe are now considering continued to be advocates of the PunjabHigh Court when they were appointed as district judges andthey had a standing of more than seven years when so appointed.They were clearly eligible for appointment under Cl. 2 of Art.233of the Constitution.”

5. In Chandra Mohanv. State of Uttar Pradesh and others.[2], thisCourt interpreted the expression “the service” in clause 2 of Article 233to mean judicial service.

6. In Satya Narain Singhv. High Court of Judicature at Allahabadand Others.3, this Court considered the question as to whether judicialofficers who had seven years standing at the Bar before entering servicewould be eligible for appointment as District Judges. To quote:

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A“1. The petitioners in the several writ petitions now before us aswell as the appellants in Civil Appeal No. 548 of 1982 and thepetitioners in Writ Petitions Nos. 6346-6351 of 1980 which wedismissed on October 11, 1984 were members of the UttarPradesh Judicial Service in 1980 when all of them, in responseto an advertisement by the High Court of Allahabad, applied toBbe appointed by direct recruitment to the Uttar Pradesh HigherJudicial Service. They claimed that each of them had completed7 years of practice at the bar even before their appointment tothe Uttar Pradesh Judicial Service and were, therefore, eligibleto be appointed by direct recruitment to the Higher JudicialCService. …”

After referring to the text of Article 233, this Court held as follows:- “3. … It is only in respect of the persons covered by the secondDclause that there is a requirement that a person shall be eligiblefor appointment as District Judge if he has been an advocate ora pleader for not less than 7 years. In other words, in the case ofcandidates who are not members of a Judicial Service they musthave been advocates or pleaders for not less than 7 years andthey have to be recommended by the High Court before theyEmay be appointed as District Judges, while in the case ofcandidates who are members of a Judicial Service the 7 years’rule has no application but there has to be consultation with theHigh Court. A clear distinction is made between the two sourcesof recruitment and the dichotomy is maintained. The two streamsFare separate until they come together by appointment. Obviously”the same ship cannot sail both the streams simultaneously..

In Satya Narain Singh(supra), the Court specifically referred toRameshwar Dayal(supra) to note that Article 233 is a self containedGprovision regarding appointment of District Judges. Finally, at paragraph5, after discussing Chandra Mohan(supra), it was held that:

“5. Posing the question whether the expression “the service ofthe Union or of the State” meant any service of the Union or ofthe State or whether it meant the Judicial Service of the UnionHor of the State, the learned Chief Justice emphatically held that the expression “the service” in Article 233(2) could only meanthe Judicial Service. But he did not mean by the above statementthat persons who are already in the service, on therecommendation by the High Court can be appointed as DistrictJudges, overlooking the claims of all other seniors in theSubordinate Judiciary contrary to Article 14 and Article 16 ofthe Constitution.”

7. In Deepak Aggarwalv. Keshav Kaushik and Others.4, a three-judge Bench of this Court held that the appellants did not cease to beadvocates while working as Assistant District Attorney/Public Prosecutor/Deputy Advocate General. In arriving at this decision, this Court alsodealt with the expression, “if he has been for not less than 7 years anadvocate” in Article 233(2). Paragraphs 51 and 102 read as follows :-

“51. From the above, we have no doubt that the expression, “theservice” in Article 233(2) means the “judicial service”. Othermembers of the service of the Union or State are as it is excludedbecause Article 233 contemplates only two sources from whichthe District Judges can be appointed. These sources are: (i)judicial service; and (ii) the advocate/pleader or in other wordsfrom the Bar. The District Judges can, thus, be appointed fromno source other than judicial service or from amongst advocates.Article 233(2) excludes appointment of District Judges from thejudicial service and restricts eligibility of appointment as DistrictJudges from amongst the advocates or pleaders having practiceof not less than seven years and who have been recommendedby the High Court as such.”

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“102. As regards construction of the expression, “if he has beenfor not less than seven years an advocate” in Article 233(2) ofthe Constitution, we think Mr Prashant Bhushan was right in hissubmission that this expression means seven years as an advocateimmediately preceding the application and not seven years anytime in the past. This is clear by use of “has been”. The presentperfect continuous tense is used for a position which began atsometime in the past and is still continuing. Therefore, one of the AB

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Aessential requirements articulated by the above expression inArticle 233(2) is that such person must with requisite period be”continuing as an advocate on the date of application.

8. Vijay Kumar Mishra and Another.v. High Court of JudicatureBat Patna and Others.5 is a case where an advertisement was issuedinviting applications from eligible advocates for direct recruitment forthe post of District Judge. Pursuant to the advertisement, the appellantsappeared in the preliminary as well as main examination. In the meantime,the appellants qualified for the Subordinate Judicial Service of the StateCof Bihar and joined service in August, 2015. The result of the mainsexamination for the post of District Judge was declared in January, 2016and the appellants qualified for the same. However, they were deniedpermission by the Registrar General of Patna High Court to appear forthe interview in view of Article 233(2) of the Constitution, as they werealready in the State Subordinate Judicial Service. To quoteDChelameswar, J.:- “7. It is well settled in service law that there is a distinctionbetween selection and appointment. Every person who issuccessful in the selection process undertaken by the State forthe purpose of filling up of certain posts under the State does notEacquire any right to be appointed automatically. Textually, Article233(2) only prohibits the appointment of a person who is alreadyin the service of the Union or the State, but not the selection ofsuch a person. The right of such a person to participate in theselection process undertaken by the State for appointment toFany post in public service (subject to other rational prescriptionsregarding the eligibility for participating in the selection processsuch as age, educational qualification, etc.) and be considered isguaranteed under Articles 14 and 16 of the Constitution.

8. The text of Article 233(2) only prohibits the appointment of aGperson as a District Judge, if such person is already in the serviceof either the Union or the State. It does not prohibit theconsideration of the candidature of a person who is in the serviceof the Union or the State. A person who is in the service ofeither the Union or the State would still have the option, if selected,to join the service as a District Judge or continue with his existingH5 (2016) 9 SCC 313

employment. Compelling a person to resign from his job evenfor the purpose of assessing his suitability for appointment as aDistrict Judge, in our opinion, is not permitted either by the textof Article 233(2) nor contemplated under the scheme of theConstitution as it would not serve any constitutionally desirablepurpose.”

9. This Court took note of the judgment in Satya Narain Singh(supra) but distinguished it holding that:

“10. In first of the abovementioned judgments, the appellant-petitioners before this Court were members of the Uttar PradeshJudicial Service. In response to an advertisement by the HighCourt, they applied to be appointed by direct recruitment to theUttar Pradesh Higher Judicial Service (District Judges). Itappears from the judgment “as there was a question about theeligibility of the members of the Uttar Pradesh Judicial Serviceto appointment by direct recruitment to the higher Judicial Service…” (Satya Narain case, SCC p. 227, para 1), some of themapproached the High Court by way of writ petitions which weredismissed and therefore, they approached this Court. It is notvery clear from the judgment, as to how the question about theireligibility arose and at what stage it arose. But the fact remains,by virtue of an interim order of this Court, they were allowed toappear in the examination. The argument before this Court wasthat all the petitioners had practised for a period of seven yearsbefore their joining the Subordinate Judicial Service, and therefore,they are entitled to be considered for appointment as DistrictJudges notwithstanding the fact that they were already in theJudicial Service.

11. It appears from the reading of the judgment in Satya NarainSingh case that the case of the petitioners was that their claimsfor appointment to the post of District Judges be considered underthe category of members of the Bar who had completed sevenyears of practice ignoring the fact that they were already in theJudicial Service. The said fact operates as a bar undoubtedlyunder Article 233(2) for their appointment to the Higher JudicialService. It is in this context this Court rejected their claim. The AB

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Aquestion whether at what stage the bar comes into operationwas not in issue before the Court nor did this Court go into that”question.

This Court also held that the decision in Deepak Aggarwal (supra)Bhad no relevance to the issue at hand.

10. In the supplementing opinion, Sapre, J. made the followingobservations which are extremely pertinent in this context :-

21. Mr Ranjit Kumar, Solicitor General of India appearing forthe respondent (High Court), however, contended that the wordC“appointed” occurring in Article 233(2) of the Constitution shouldnecessarily include the entire selection process starting from thedate of submitting an application by the person concerned till thedate of his appointment. It was his submission that if any suchperson is found to be in service of the Union or the State, as theDcase may be, on the date when he has applied then such personwould suffer disqualification prescribed in clause (2) of Article233 and would neither be eligible to apply nor be eligible forappointment to the post of District Judge.

22. This submission though looks attractive, is not acceptable.ENeither the text of Article and nor the words occurring in Article233(2) suggest such interpretation.Indeed, if his argument isaccepted, it would be against the spirit of Article 233(2). Mylearned Brother for rejecting this argument has narrated theconsequences, which are likely to arise in the event of acceptingsuch argument and I agree with what he has narrated.

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23. In my view, there lies a subtle distinction between the words“selection” and “appointment” in service jurisprudence.(SeePrafulla Kumar Swain v. Prakash Chandra Misra.) Whenthe Framers of the Constitution have used the word “appointed”in clause (2) of Article 233 for determining the eligibility of aGperson with reference to his service then it is not possible toread the word “selection” or “recruitment” in its place. In otherwords, the word “appointed” cannot be read to include the word“selection”, “recruitment” or “recruitment process”.

24. In my opinion, there is no bar for a person to apply for theHpost of District Judge, if he otherwise, satisfies the qualifications prescribed for the post while remaining in service of the Union/State. It is only at the time of his appointment (if occasion soarises) the question of his eligibility arises. Denying such personto apply for participating in selection process when he otherwisefulfils all conditions prescribed in the advertisement by takingrecourse to clause (2) of Article 233 would, in my opinion, amountto violating his right guaranteed under Articles 14 and 16 of theConstitution of India.”

11. Some of the learned counsel have also invited our attention toAll India Judges’ Association and others v. Union of India and others6,Shri Kumar Padma Prasad v. Union of India and others7 and State ofAssamv. Horizon Union and another8.

12. In the order dated 03.04.2017 in Sukhda Pritam and Anrv.Hon’ble High Court of Rajasthan and Anrwhich is one of the cases inthe batch, there is also a reference to rules framed by certain stateswhich provide that “in computing the period of seven years there shallbe included a period during which he (a candidate) has held judicialoffice”. This is also an issue which is required to be considered.

13. In view of the various decisions of this Court, one major issuearising for consideration is whether the eligibility for appointment as districtjudge is to be seen only at the time of appointment or at the time ofapplication or both. Thus, having regard to the contentions and thematerials placed before us and having regard to the ratio and observationsin the cases referred to above, some of which are apparently diverse,we are also of the view that these cases involve substantial questions oflaw as to the interpretation of Article 233 of the Constitution of India.Therefore, we are of the opinion that this matter should be placed beforeHon’ble the Chief Justice of India for constituting an appropriate Bench.

14. Learned counsel for the petitioners pointed out that all thepetitioners herein, by virtue of interim orders, have appeared in the writtenexaminations and in some cases they have also attended the interview.We are informed that in some of the cases, appointment of other eligiblecandidates is held up on account of pendency of these cases.

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A15.The Registry may seek appropriate orders from Hon’ble theChief Justice of India having regard to the special circumstances referredto above, for an early posting.

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Kalpana K. Tripathy Matter placed before Hon’ble CJI

for appropriate Bench.

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