R. POORNIMA AND ORS. versus UNION OF INDIA AND ORS. on 4 September 2020

[2020] 8 S.C.R. 89

R. POORNIMA AND ORS.

v.

UNION OF INDIA AND ORS.

(Writ Petition (Civil) No. 1172 of 2019)

SEPTEMBER 04, 2020

[S. A. BOBDE, CJI, A. S. BOPANNA ANDV. RAMASUBRAMANIAN, JJ.]

Constitution of India – Art. 217(2) – Explanation (a) and(aa) u/Art. 217(2) – The petitioners as well as the respondent nos.24 to 29 were duly selected and appointed as District Judges byway of direct recruitment in the year 2011 – The respondent nos. 5to 23 were appointed as Judicial Officers in the cadre below that ofDistrict Judges – After long service, they gained promotion to thepost of District Judges – But their promotion happened after thedate on which the petitioners were directly recruited as DistrictJudges – This is how and why the petitioners became seniors to therespondent nos. 5 to 23 – The grievance of the petitioners is thatdespite being the senior-most in the cadre of District Judges, theyhave been overlooked and their juniors now recommended forelevation to the High Court as Judges – The Collegium of the HighCourt found that the petitioners had not completed 10 years ofservice in a Judicial Office as required by Art. 217(2)(a) – Therefore,recommended the names of persons who fulfilled the eligibilitycriteria – Writ petition – Petitioners contended that the qualificationsprescribed in sub-clauses (a) and (b) of clause (2) of Art. 217 arein the alternative, but Art. 217 does not create separate streams forappointment, with independent quotas for such streams and tointerpret Explanation (a) in such a manner that only a person whoresigned from Judicial service and became an Advocate will beeligible to club both the periods, will result in unfair and hostilediscrimination of Judicial officers, offending Art. 14 and suchinterpretation has to be avoided – Held: The clause (2) of Art. 217has two parts, the first of which is in sub-clauses (a) and (b) andthe second in Explanation (a) and (aa) – Explanation (a) goes withsub-clause (a) and Explanation (aa) goes with sub-clause(b) –According to Explanation (a), the period of service rendered by aperson in a judicial office has to be computed by taking into account

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Athe period during which he has been an advocate of a High Court– But the condition for such addition of some other period, underexplanation (a) is that such other period should have followed andnot preceded the judicial service – This is made clear by the use ofthe words ‘after he has held any judicial office’ – However, what issought by the petitioners herein is to club with their judicial service,Bthe experience that they had at the Bar before joining Judicial service– The petitioners want the word ‘after’ to be interpreted to meanand include ‘before’ – This is not permissible – Further, the Art.217(2) merely prescribes the eligibility criteria and method ofcomputation – There are two separate queues, one from judicialCservice and another from the Bar – The queue to which a person isassigned, depends upon his status (either as an advocate or judicialofficer) on the date of consideration – Hopping on and hoppingoff from one queue to other, is not permissible – As far as contentionregarding Art.14 is concerned, there is no violation of Art. 14, asArt. 217(2) does not guarantee anyone with the right to be appointedDas a Judge of the High Court – Therefore, the claim of the writpetitioners is wholly untenable – Consequently, the writ petition isdismissed.

Dismissing the writ petition, the Court

EHELD: 1. Clause (2) of Article 217 has two parts, the firstof which is in sub-clauses (a) and (b) and the second in Explanation(a) and (aa). The first indicates in plain terms, that to be qualifiedfor appointment, a person (i) must be a citizen of India and (ii)must have either held a judicial office for 10 years or been anAdvocate of a High Court for 10 years. [Para 22][100-G]F

2. The second part of clause (2) of Article 217, which hastaken shape in the form of an ‘Explanation’, merely explains themanner in which the periods indicated in sub-clauses (a) and (b)are to be construed. Interestingly, the Explanation under clause(2) of Article 217 also has 2 parts, one going with sub-clause (a)Gand another going with sub-clause (b). [Para 24][101-C-D]

3. Explanation (a) goes with sub-clause (a) and Explanation(aa) goes with sub-clause (b). This is because, Explanation (a)

permits the addition, to the number of years of service of a JudicialOfficer, some other period also, namely (i) the period during whicha person has been an advocate of a High Court, or (ii) the periodduring which a person has held the office of a member of a Tribunal.Similarly, Explanation (aa) permits the addition, to the number ofyears during which a person has been an advocate of a High court,some other period, namely the period during which he has heldany judicial office or the office of a member of a Tribunal.[Para 25][101-D-F]

4. According to Explanation (a), the period of servicerendered by a person in a judicial office has to be computed bytaking into account the period during which he has been anadvocate of a high court. [Para 26][101-F]

5. But the condition for such addition of some other period,under Explanation (a) is that such other period should havefollowed and not preceded the judicial service. This is made clearby the use of the words “after he has held any judicial office”.[Para 27][101-G]

6. What is sought by the petitioners herein is to club withtheir judicial service, the experience that they had at the Barbefore joining judicial service. In other words, the petitionerswant the word “after” to be interpreted to mean and include“before”. This Court does not know of any rule of interpretationwhich permits the word “after” to be interpreted to mean andinclude “before”. [Para 28][101-H; 102-A]

7. The telescoping of Explanation (a) and (aa) into sub-clauses (a) and (b) of clause (2) of Article 217 would show that aperson may acquire the eligibility as indicated in Article 217(2)-(i) either exclusively from the Bar [as provided in clause (b)]; (ii)or exclusively from the judicial service [as provided in clause(a)]; (iii) or from a cocktail of both [as provided in Explanation (a)and (aa)] [Para 29][102-B-C]

8. But what is important to note is that Article 217(2) merelyprescribes the eligibility criteria and the method of computationof the same. If a person is found to have satisfied the eligibilitycriteria, then he must take his place in one of the queues. Thereare two separate queues, one from judicial service and another AB

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Afrom the Bar. One cannot stand in one queue by virtue of hisstatus on the date of consideration of his name for elevation andat the same time keep a towel in the other queue, so that he canclaim to be within the zone of consideration from either of thetwo or from a combination of both. [Para 30][102-C-E]

B9. The queue to which a person is assigned, depends uponhis status on the date of consideration. If a person is an advocateon the date of consideration, he can take his place only in thequeue meant for members of the Bar. Similarly, if a person is ajudicial officer on the date of consideration, he shall take his chanceonly in the queue meant for service candidates. [Para 31][102-E-CF]

10. Hopping on and hopping off from one queue to the other,is not permissible. Today, if any of the petitioners cease to beJudicial Officers and become Advocates, they may be eligible tobe considered against the quota intended for the Bar. But whileDcontinuing as Judicial Officers, they cannot seek to invokeExplanation (a) as it applies only to those who have becomeadvocates after having held a judicial office. [Para 32][102-F-G]

11.1 The words “has held” and the words “has been” appearrepeatedly in sub-clauses (a) and (b) as well as Explanation (a)Eand (aa) under Article 217(2). In relation to a person from thecategory of judicial service, sub-clause (a) uses the words “hasheld”. But in relation to a person from the category of advocate,sub-clause (b) uses the words “has been”. This is quite relevantfor the reason that even in Explanation (a) and (aa) the wordsF“has held” always preceded the words “judicial office” and thewords “has been” always preceded the word “advocate”.[Para 43][106-B-D]

11.2 Explanation (a) confers the benefit of clubbing to alimited extent, to a person who has held a Judicial Office. To beGeligible for the limited benefit so conferred, a person should havebeen an Advocate “after he has held any judicial office”. There isno confusion either in the language of Article 217(2) or in mind ofthis Court. [Para 45][106-E-F]

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P. Ramakrishnam Raju v. Union of India (2014) 12 SCC1 : [2014] 4 SCR 562; Mahesh Chandra Gupta v. Unionof India (2009) 8 SCC 273 : [2009] 10 SCR 921; D. K.Sharma v. Union of India (2011) SCC Online Del 1773– inapplicable.

Dheeraj Mor v. Hon’ble High Court of Delhi (2018) 4SCC 619 : [2018] 1 SCR 828; Vijay Kumar Mishra v.High Court of Judicature at Patna (2016) 9 SCC 313 :[2016] 3 SCR 806; Shri Kumar Padma Prasad v. Unionof India (1992) 2 SCC 428 : [1992] 2 SCR 109 –referred to.

Case Law Reference

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil)No. 1172 of 2019.

Under Article 32 of the Constitution of India R.S. Suri, ASG, Rakesh Dwivedi, Atmaram NS Nadkarni, GuruKrishnakumar, Vinay Navare, P.S. Patwalia, M. Ajmal Khan, Sr. Advs.,Kaustubh Shukla, Subhasish Bhowmick, Eklavya Dwivedi, Abhay Singh,Piyush Beriwal, Ms. Priyanka Das, Arvind Kumar Sharma,D. L. Chidananda, Salvador Santosh Rebello, Alok Kumar Pandey,Ashwin Kumar D.S., Deepayan Mandal, Arindam Ghosh, M. YogeshKanna, K. V. Vijayakumar, Anish R. Shah, Sharan Thakur, MaheshThakur, Siddhartha Thakur, Siddhartha Barua, P. V. Yogeswaran, M.P.Parthiban, Parthiv K. Goswami, Ishan Bisht, Ms. Diksha Rai, M. A.Chinnasamy, Ms. C. Rubavathi, P. Rajaram, V. Senthil Kumar,A. Lakshminarayanan, Mrs. L. Maheswari, Sriram Parakkat,M.S. Vishnu Sankar, Ms. Athira G. Nair, Sarath J., Deepak Singh, Ms.Anupama, Sripathy K.R. (For M/s Lawfic), Senthil Jagadeesan,Ms.Mrinal Kanwar, Ms. Sonakshi Malhan, Ms. Suriti Chowdhary, Advs.for the appearing parties.

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AThe Judgment of the Court was delivered by

S. A. BOBDE, CJI

1. Persons who were appointed as District Judges (Entry Level)by way of direct recruitment vide a Government Order G.O. Ms. No.170, Home Department dated 18.02.2011 in the Tamil Nadu State JudicialService have come up with this Writ Petition seeking the following reliefs:

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“(a) Issue a Writ in the nature of a Writ of CertiorarifiedMandamus or any other appropriate Writ, Order or Orders,Directions, to call for records relating to the last list of namesrecommended by the Hon’ble Chief Justice of High Court ofMadras to the Hon’ble Chief Justice of India for appointmentas Judges of Madras High Court and quash the same in sofar as it relates to the names of Respondents No. 5 to 23 hereinand consequently direct the Hon’ble Collegiums of the MadrasHigh Court to consider the names of the Petitioners also forappointment as High Court Judges; C

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(b) Issue a Writ in the nature of Writ of Mandamus orany other appropriate Writ, Order or Orders, Directions,directing the Respondents No. 1 to 4 to return the last list ofnames for appointment as Judges of High Court, Madrasrecommended by the Hon’ble Chief Justice of High Court ofMadras to the Hon’ble Chief Justice of India; E

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(c) Pass such further or other Order or Orders that thisHon’ble Court may deem fit and proper in the facts andcircumstances of the case.”

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2. On 06.12.2019, this Court issued notice restricted only to onequestion. The order passed on 06.12.2019 is self-explanatory and henceGit is reproduced as follows:

“At the request of Shri Rakesh Dwivedi, learned seniorcounsel appearing on behalf of the petitioners, prayer ‘A’ isallowed to be deleted.

Issue notice restricted to the question of the entitlementof the petitioners to be considered by virtue of having put in18 years, as claimed.

Dasti service, in addition, is permitted.”

3. We have heard the learned counsel for the parties.

4. The Petitioners as well as the Respondent Nos. 24 to 29 wereduly selected and appointed as District Judges (Entry Level) by way ofdirect recruitment, vide a Government Order in G.O.Ms.No. 170, HomeDepartment, dated 18.02.2011. Therefore, obviously, they have notcompleted 10 years of service as Judicial Officers, as on date. But atthe time of their appointment as District Judges,the Petitioner Nos. 1 to6had already practiced for more than 10 years as advocates, the PetitionerNo. 7 had practiced as advocate for 9 years and 10 months and PetitionerNo. 8 had practiced for 8 years and 6 months, after getting enrolled onthe rolls of the Bar Council of Tamil Nadu and Puducherry.

5. In the cadre of District Judges, the Petitioners and RespondentNos. 24 to 29 are the senior-most, as seen from the annual list of officersreleased by the High Court. The seniority of direct recruits like thePetitioners herein over the promotees, was also reinforced by the judgmentof the Division Bench of the Madras High Court in Writ Petition No.20069 of 2014, by judgment dated 26.02.2015.

6. The short grievance of the petitioners is that despite being thesenior-most in the cadre of District Judges, they have been overlookedand their juniors now recommended for elevation to the High Court asJudges. This, according to the Petitioners, was done by the Collegium ofthe High Court solely on the application of Explanation (a) under Article217(2) of the Constitution of India. The contention of the Petitioners isthat to determine the eligibility of a person, sub-clauses (a) and (b) ofclause (2) of Article 217 together with Explanations (a) and (aa) shouldbe applied simultaneously.

7. In simple terms, the Petitioners want the experience gained bythem as advocates to be clubbed together with the service rendered bythem as Judicial Officers, for determining their eligibility. Once thisclubbing is allowed, the Petitioners would like to take advantage of theirsettled seniority position in the cadre of District Judges, over and abovethat of Respondent Nos. 5 to 23. In other words, the Petitioners wantthe best of both worlds.

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A8. Before proceeding further, we must note that the RespondentNos. 5 to 23 were appointed as Judicial Officers in the cadre below thatof District Judges. After a long service, they have gained promotion tothe post of District Judges. But their promotion happened after the dateon which the petitioners were directly recruited as District Judges. Thisis how and why the petitioners became seniors to the respondents 5 toB23.

9. When vacancies arose for elevation to the High Court as Judges,as against the 1/3[rd] quota meant to be filled up from among the StateJudicial Officers, the Collegium of the High Court found that thePetitioners had not completed 10 years of service in a Judicial Office asCrequired by Article 217(2)(a). Therefore, the Collegium recommendedthe names of persons who fulfilled the eligibility criteria. Aggrieved bythis action on the part of the Collegium of the High Court, the Petitionershave come up with this Writ Petition.

10. The contentions raised by the petitioners in the writ petitionDare little different from the submissions made by Mr. Rakesh Dwivedi,learned Senior Counsel for the petitioners. Let us first deal with thecontentions raised in the writ petition.

11. In their pleadings, the Petitioners have pitched their claim on—

E(i)a cumulative reading of sub-clauses (a) and (b) of clause (2)of Article 217 and Explanation (a) and (aa) thereunder;

(ii) the decision of this Court in P. Ramakrishnam Raju vs.Union of India[1] wherein this Court directed the number ofyears of practice as advocate, to be added to the number ofyears of service rendered as a Judge of the High Court forFdetermining the qualifying service for pensionary benefits,and

(iii) the reference made by a Division Bench of this Court to a 3-member bench in Dheeraj Morvs. Hon’ble High Court ofDelhi[2] of the question whether for the purposes of ArticleG233, the number of years of practice as an advocate can beclubbed together with the number of years of service as aJudicial Officer for determining the eligibility for directrecruitment to the post of District Judge.

1 (2014) 12 SCC 1H2 (2018) 4 SCC 619

12. At the outset, we shall point out that the ratio laid down inP. Ramakrishnam Raju has no application to the issue on hand. Thesaid decision was rendered in the context of advocates elevated to thebenches of the High Courts, not being appropriately compensated interms of pensionary benefits, when they retire after less than 7 years/10years/14 years of service. We cannot apply the same ratio whileconsidering the eligibility of a person for appointment as a Judge of theHigh Court.

13. The reliance placed by the Writ Petitioners in Ground P of theWrit Petition on the reference made in Dheeraj Mor is of no use tothem anymore. This is for the simple reason that by a judgment dated19.02.2020, a 3-member bench of this Court has answered the reference,in a way that will negate the argument of the Petitioners.

14. In Dheeraj Mor, three categories of persons came up with aclaim for appointment to the post of District Judges by way of directrecruitment. They were, (i) those who had 7 years of practice as anadvocate, but were serving in a judicial office on the date of application/appointment, (ii) those who had completed 7 years of service as JudicialOfficers, but did not have 7 years of practice at the Bar, and (iii) thosewho wanted the number of years of practice as Advocate to be clubbedalong with the number of years of service as a Judicial Officer, for thepurpose of arriving at the eligibility criteria. After taking note of thediverse views expressed by different benches of this Court in earliercases, a Division Bench of this Court passed an order on 23.01.2018directing the matter to be placed before a larger bench.

15. The Petitioners herein filed the present Writ Petition inSeptember 2019. On the date on which the Petitioners filed the WritPetition and on the date on which the Writ Petition came up for hearing,namely 06.12.2019, the reference in Dheeraj Mor was still pending.The question was therefore at large on the date when this court orderednotice in the present writ petition.

16. But subsequently, the reference has been answered by a three-member bench of this court on 19.02.2020. The principles laid down bythe three member bench, are as follows:

(i) For the purpose of Article 233(2), an advocate has to becontinuing in practice for not less than 7 years as on thecut-off date and also at the time of appointment as District A

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Judge. Members of Judicial Service having 7 years’experience of practice before they joined the service or thosehaving combined experience of 7 years as lawyer andmember of judiciary, are not eligible to apply for directrecruitment as a District Judge, and B(ii)The decision in Vijay Kumar Mishra vs. High Court ofJudicature at Patna[3] upholding the eligibility of a JudicialOfficer to apply for the post of District Judge by way ofdirect recruitment, does not lay down the law correctly andhence, overruled.

C17. Therefore, for the purpose of Article 233, it is not permissibleanymore, for people to hop-on and hop-off between the two independentstreams of recruitment, in the light of the law laid down in Dheeraj Mor.Hence the reliance placed by the Petitioners in their pleadings, on thereference pending at that time in Dheeraj Mor, has become irrelevant.

18. Though Dheeraj Mor was concerned with Article 233 of theConstitution, an analogy was drawn by S. Ravindra Bhat, J. in Paragraph34 of his separate but concurring opinion in Dheeraj Mor, to Article 217with which we are concerned in the present case. Paragraph 34 of thesaid opinion reads as follows:

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E“34. This view is fortified by Article 217 (2), which spellsout two sources from which appointments can be resorted tofor the position of judge of a High Court: firstly, member of ajudicial service of a State [Article 217 (a)] and an advocatewith ten years’ experience [Article 217 (b)]. For the SupremeCourt, Article 124 (3) (a) enables consideration of a personFwith five years’ experience as a High Court judge; Article124(3)(b) enables consideration of an advocate with tenyears’ experience at the bar in any High Court; Article124(3)(c) enables consideration of a distinguished jurist.Significantly, advocates with stipulated experience at the barGare entitled, by express provisions of the Constitution [Articles233 (2), Article 217 (b) and Article 124 (3) (b)] to beconsidered for appointment to the District Courts, High Courtsand the Supreme Court, respectively. However, members ofthe judicial service can be considered only for appointment

(by promotion) as District Judges, and as High Court judges,respectively. Members of the judicial service cannot beconsidered for appointment to the Supreme Court. Likewise,academics or distinguished jurists, with neither practise atthe Bar, nor any experience in the judicial service, can beconsidered for appointment as District Judge, or as High Courtjudge.”

19. Therefore, the very foundation upon which the Petitionershave built their case, at least in their pleadings, is now gone. ButMr. Rakesh Dwivedi, learned Senior Counsel for the petitionerscontended—

(i) that while clause (1) of Article 217 prescribes the method ofappointment and the age up to which an appointee can hold office, clause(2) merely stipulates the qualification for appointment and the method ofcomputation of such qualification;

(ii) that the qualifications prescribed in sub-clauses (a) and (b) ofclause (2) of Article 217 are in the alternative, but Article 217 does notcreate separate streams for appointment, with independent quotas forsuch streams;

(iii) that to interpret Explanation (a) in such a manner that only aperson who resigned from Judicial service and became an Advocatewill be eligible to club both the periods, will result in unfair and hostilediscrimination of Judicial Officers, offending Article 14 and hence suchan interpretation has to be avoided; and

(iv) that there are precedents where District Judges who had notcompleted 10 years of service, were appointed as Judges of High courts,by clubbing the number of years of practice they had at the bar, togetherwith the number of years of service they put in judicial service.

20. Before we deal with the above submissions, let us take a lookat Article 217(2) of the Constitution, which reads as follows:

“(2) A person shall not be qualified for appointment asa Judge of a High Court unless he is a citizen of India and—

(a) has for at least ten years held a judicial office inthe territory of India; or (b) has for at least ten years been an advocate of aHigh Court or of two or more such Courts in succession; AB

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AExplanation.—For the purposes of this clause—

(a) in computing the period during which a person hasheld judicial office in the territory of India, there shall beincluded any period, after he has held any judicial office,during which the person has been an advocate of a HighBCourt or has held the office of a member of a tribunal or anypost, under the Union or a State, requiring special knowledgeof law; (aa) in computing the period during which a personhas been an advocate of a High Court, there shall be includedCany period during which the person [has held judicial officeor the office of a member of a tribunal or any post, under theUnion or a State, requiring special knowledge of law] afterhe became an advocate; (b) in computing the period during which a person hasDheld judicial office in the territory of India or been anadvocate of a High Court, there shall be included any periodbefore the commencement of this Constitution during whichhe has held judicial office in any area which was comprisedbefore the fifteenth day of August, 1947, within India asdefined by the Government of India Act, 1935, or has beenEan advocate of any High Court in any such area, as the casemay be.”

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21. It is clear from the language of Article 217 that clause (1)merely prescribes the method of appointment and the age up to whichan appointee can hold office. Clause (2) does two things. First it stipulatesFthe qualification for appointment under the 2 sub-clauses (a) and (b).Then it stipulates the method of reckoning such qualification, under the 2limbs of the Explanation.

22. Actually, clause (2) of Article 217 has 2 parts, the first ofwhich is in sub-clauses (a) and (b) and the second in Explanation (a) andG(aa). The first indicates in plain terms, that to be qualified for appointment,a person (i) must be a citizen of India and (ii) must have either held ajudicial office for 10 years or been an Advocate of a high court for 10years.

23. Suppose there was no ‘Explanation’ under clause (2) of ArticleH217, then there would have been no scope for any argument, other than to accept blindly, that the qualification stipulated in clause (2) of Article217, can be acquired by an individual from 2 separate sources, namely(i) from the Bar or (ii) from the ‘judicial service’, as defined in clause(b) of Article 236. This is for the reason that Sub-clauses (a) and (b) areactually in the alternative, as can be seen from the use of the word “or”in between. The word “or” in English grammar, according to Merriam-webster dictionary, is a coordinating conjunction. While the word“and”, which is also a conjunction, will denote something to be takencumulatively, the word “or” will denote something to be takenalternatively. This is so far as the first part of clause (2) is concerned.As stated earlier, the first part of clause (2) is in sub-clauses (a) and (b).

24. The second part of clause (2) of Article 217, which has takenshape in the form of an ‘Explanation’, merely explains the manner inwhich the periods indicated in sub-clauses (a) and (b) are to be construed.Interestingly, the Explanation under clause (2) of Article 217 also has 2parts, one going with sub-clause (a) and another going with sub-clause(b).

25. Explanation (a) goes with sub-clause (a) and Explanation (aa)goes with sub-clause (b). This is because, Explanation (a) permits theaddition, to the number of years of service of a Judicial Officer, someother period also, namely (i) the period during which a person has beenan advocate of a High Court, or (ii) the period during which a person hasheld the office of a member of a Tribunal. Similarly, Explanation (aa)permits the addition, to the number of years during which a person hasbeen an advocate of a High court, some other period, namely the periodduring which he has held any judicial office or the office of a member ofa Tribunal.

26. According to Explanation (a), the period of service renderedby a person in a judicial office has to be computed by taking into accountthe period during which he has been an advocate of a high court.

27. But the condition for such addition of some other period,under Explanation (a) is that such other period should have followedand not preceded the judicial service. This is made clear by the useof the words “after he has held any judicial office”.

28. What is sought by the petitioners herein is to club with theirjudicial service, the experience that they had at the Bar before joiningjudicial service. In other words, the petitioners want the word “after”

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Ato be interpreted to mean and include “before”. We do not know of anyrule of interpretation which permits the word “after” to be interpreted tomean and include “before”.

29. The telescoping of Explanation (a) and (aa) into sub-clauses(a) and (b) of clause (2) of Article 217 would show that a person mayBacquire the eligibility as indicated in Article 217(2)-

(i) either exclusively from the Bar [as provided in clause (b)]

(ii) or exclusively from the judicial service [as provided in clause(a)]

C(iii) or from a cocktail of both [as provided in Explanation (a) and(aa)]

30. But what is important to note is that Article 217(2) merelyprescribes the eligibility criteria and the method of computation of thesame. If a person is found to have satisfied the eligibility criteria, then heDmust 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 inone queue by virtue of his status on the date of consideration of hisname 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 ofthe two or from a combination of both.

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31. The queue to which a person is assigned, depends upon hisstatus on the date of consideration. If a person is an advocate on thedate of consideration, he can take his place only in the queue meant formembers of the Bar. Similarly, if a person is a judicial officer on the dateof consideration, he shall take his chance only in the queue meant forFservice candidates.

32. Hopping on and hopping off from one queue to the other, isnot permissible. Today, if any of the petitioners cease to be JudicialOfficers and become Advocates, they may be eligible to be consideredagainst the quota intended for the Bar. But while continuing as JudicialGOfficers, they cannot seek to invoke Explanation (a) as it applies only tothose who have become advocates after having held a judicial office.

33. The issue can be looked at from another angle also. Thepetitioners successfully claimed and gained seniority over and above thecontesting respondents, on the ground that they were directly recruitedHto the post of District Judges, before the contesting respondents got promoted as District Judges. In other words, for the purpose of seniority,the petitioners went solely by the date of recruitment to the cadre ofDistrict Judges and not (i) by the total length of service in a judicialoffice or (ii) by a combination of the number of years of practice at thebar and the number of years of judicial service. But for the purpose ofdetermining the eligibility, they want to go by the total period of practiceas an Advocate and the period of service in a judicial office. If clubbingis permitted, it should be permitted even for the contesting respondents,which if done, would upset even the seniority of the petitioners.

34. Though Mr. Rakesh Dwivedi, learned Senior Counsel submittedthat his clients cannot have any objection to the benefit of clubbing beinggranted even to the contesting respondents, we think it is an argument ofconvenience. For filling up the vacancies under the service quota, thecollegiums of the High courts consider the ACRs and the judgments ofthe judicial officers, in the ratio of 1:3 or 1:5 or so. To undertake thisexercise, the High courts maintain seniority lists of judicial officers. Ifthere are 3 vacancies to be filled up, the profile of 9 or 15 senior-mostofficers are considered. If the argument of the petitioners is acceptedand the contesting respondents are also granted the benefit of clubbing,they will be far seniors to the petitioners in terms of the total number ofyears of service both at the bar and in service. In such an event, thepetitioners will not come anywhere near the zone of consideration (withinthe first 9 or 15). In every State, hundreds of judicial officers will satisfythe qualifying criteria, if the argument of the petitioners is accepted.Take for instance a case where a person is appointed as a District Judgeafter 10 years of practice at the Bar. If the contention of the petitionersis accepted, even such a person will be eligible from day one of hisappointment as District Judge. Since all such persons cannot be consideredfor the limited number of vacancies, a seniority list is maintained and aparticular number of officers are taken in the zone of consideration,depending upon the number of vacancies sought to be filled up under thequota. The cache in the argument of the petitioners is that for the purposeof seniority, they do not want any two services to be clubbed, but for thepurpose of eligibility, they want even the practice at the Bar to be clubbed.This is nothing but a self-serving argument.

35. As pointed out earlier, the petitioners were appointed inFebruary 2011. They will be completing 10 years of service in a judicialoffice by February 2021. This is why, when this court ordered notice in A

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Athis writ petition on 06.12.2019, they have agreed to delete prayer A andconfine themselves to prayer B, which is just for returning the list ofnames recommended by the collegium of the Madras High court. Perhapsthe petitioners have gained an impression that if the list of names alreadyrecommended is returned and the matter is taken up afresh after February2021, they would have by then become eligible in terms of sub-clauseB(a) of clause (2) of Article 217 and at that time they can claim thebenefit of seniority over and above the contesting respondents.

36. Referring to the discussions that took place in the DraftingCommittee of the Constitution, on the amendments proposed to the Draftof Article 193(2)(b) of the Constitution, which corresponds to the presentCArticle 217(2)(b), for the insertion of the words “and is” and the rejectionof the said suggestion by the Drafting Committee, it is contended by thelearned Senior Counsel for the petitioners that in the light of the same,this Court cannot interpret Article 217(2)(b) in a manner restricting it to“practising advocates”. The relevant portion of the “Comments andDSuggestions on the Draft Constitution”, from Volume 4 of the “Framingof the Indian Constitution”, relied upon by the learned counsel for thepetitioners reads as follows:- “The Editor of the Indian Law Review and some othermembers of the Calcutta Bar have suggested that in sub-Eclause (b) of clause (2) of article 193, after the word “years”the words “and is” should be inserted.

Note : This amendment seeks to restrict the recruitmentof High Court judges under sub-clause (b) of clause (2) ofarticle 193 only to practising lawyers. If this amendment isFaccepted then a person who has served as a district judgefor seven or eight years and has also practised as an advocateof a High Court for seven or eight years before being a districtjudge will not be eligible to be appointed as a High Courtjudge whereas a member of the Provincial Judicial Servicewho has served as a ‘munsif’ for only ten years will be eligibleGto be so appointed, which is certainly anomalous. Thisamendment cannot therefore be accepted.”

37. On the basis of the above it is contended that Article 217(2)(b)cannot be restricted to mean only those practising as advocates on thedate of consideration.H

38. But the above argument loses sight of the fact that Article217(2)(b) relates to the stream of advocates. When it comes to such astream, Explanation (aa) comes into play. Therefore, the reference tothe discussions in the Drafting Committee is of no relevance.

39. As a matter of fact, the present Explanation (a) was insertedonly by the Constitution (44[th] Amendment) Act, 1978 with effect from20.06.1979. What was Explanation (a) till then, became Explanation (aa)by the same Amendment. Therefore, the benefit of the presentExplanation (a) was not even available to judicial officers until 20.06.1979.

40. Reliance is placed by the learned counsel for the petitionersupon the decision of this Court in Mahesh Chandra Gupta vs. Unionof India[4], and the decision of the Delhi High court in D.K. Sharma vsUnion of India[5] in support of his contention that the entitlement to practiseas an advocate was sufficient to satisfy the criteria under Article 217(2)and that the provision does not contemplate actual practice.

41. But both those decisions arose out of a challenge to theappointment of members of the Income Tax Appellate Tribunal as Judgesof the High courts. These decisions cannot apply to the case of a personholding a judicial office. Mahesh Chandra Gupta (supra) was a casewhere the appointment of a Member of the Income Tax Appellate Tribunalas an Additional Judge of the Allahabad High Court was under challenge.As seen from Para 38 of the Report, what fell for consideration of thisCourt in the said case was “whether actual practise as against the rightto practise is a pre-requisite constitutional requirement of the eligibilitycriteria under Article 217(2)(b)”. Sub-clause (b) of Clause (2) of Article217 prescribes the number of years a person should have been anAdvocate to become eligible for consideration. Therefore, if the petitionerswant to be considered from the category as advocates, irrespective oftheir present status as judicial officers, they can always do so, providedthey do not stand in the queue intended for judicial officers. The case ofthe petitioners, as on date falls under Article 217(2)(a) and not Article217(2)(b). Hence, Mahesh Chandra Gupta (supra) will not come totheir rescue. The judgment of the Delhi High court in D.K. Sharmafollowed the ratio in Mahesh Chandra Gupta.

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A42. It is relevant to note that the expression “judicial office”appearing in Article 217(2)(a) was interpreted in Shri Kumar PadmaPrasad vs. Union of India[6 ]only to mean a judicial office belonging tothe judicial service defined in Article 236(b). Therefore, the case of aMember of Income Tax Appellate Tribunal could not have fallen withinthe ambit of Article 217(2)(a). This is why the decision in MaheshBChandra Gupta (supra) was rendered in the context of Article 217(2)(b)and not Article 217(2)(a).

43. The words “has held” and the words “has been” appearrepeatedly in sub-clauses (a) and (b) as well as Explanation (a) and (aa)under Article 217(2). In relation to a person from the category of judicialCservice, sub-clause (a) uses the words “has held”. But in relation to aperson from the category of advocate, sub-clause (b) uses the words“has been”. This is quite relevant for the reason that even in Explanation(a) and (aa) the words “has held” always preceded the words “judicialoffice” and the words “has been” always preceded the word “advocate”.

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44. In common parlance, the words “has held” stand in contradistinction to the words “is holding” or “has been holding”.

45. On the other hand the words “has been” do not have any suchconnotation. The Cambridge Dictionary states that the words “has been”are in present perfect continuous form. The Dictionary says that weEmay use the present perfect continuous, either to talk about a finishedactivity in the recent past or to talk about a single activity that beganat a point in the past and is still continuing. Keeping this in mind,Explanation (a) confers the benefit of clubbing to a limited extent, to aperson who has held a Judicial Office. To be eligible for the limitedFbenefit so conferred, a person should have been an Advocate “after hehas held any judicial office”. There is no confusion either in the languageof Article 217(2) or in our mind.

46. The argument that it will be discriminatory to allow the benefitof clubbing only to a person who held a judicial office and later becameGan advocate, does not appeal to us. In fact, Article 217(2) does notguarantee any one with the right to be appointed as a judge of the HighCourt. In a way, a person holding a judicial office is better placed, as heis assured of a career progression (though in a limited sense) after beingplaced in something like a conveyor belt. There is no such assurance for H6 (1992) 2 SCC 428)

an advocate. Therefore, the argument based upon Article 14 does notimpress us.

47. It was also contended that a few persons whose names arementioned in Paragraph 16 of the Writ Petition, got appointed to theHigh Court without completing 10 years of service as District Judges.But we do not know whether they got so appointed by clubbing thenumber of years of practise at the Bar. The factual situation that prevailedin those cases is not available. In any case a majority of those whosenames are mentioned in Para 16 of the Writ Petition, got appointed tothe High Court before Constitution (44[th] Amendment) Act, 1978.Therefore, we do know what was done in those cases.

48. Therefore, in fine, we are of the considered view that theclaim of the writ petitioners is wholly untenable and the writ petition ismisconceived. Hence, the writ petition is dismissed. There will be noorder as to costs.

Ankit Gyan

Writ petition dismissed.

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