Can In-Service Judges Stake Claim To Practicing Advocates' Quota?

Through two concurring judgments by a 3-judge bench consisting of Justice Arun Mishra, Justice Vineet Saran & Justice S. Ravindra Bhat at the Supreme Court, has disposed of a bunch of civil appeals, writ petitions and transfer petitions including the civil appeal of Dheeraj Mor v. Hon’ble High Court of Delhi, on February 19, 2020, hopefully clarifying it, for long time to come, that in the matter of appointments to the post of District Judge, in-service candidates are not eligible to lay claim to the quota reserved for practicing lawyers.

The main question before the Court for consideration was, the interpretation of Article 233 of the Constitution of India and based upon its interpretation, the question concerning the rules being ultra vires of has to be examined. Rules of various High Courts, as existing preclude members of the judicial service from staking their claim as against the posts reserved for direct recruitment from the Bar.

A division bench of the Supreme Court has referred these cases to this larger bench. The petitioners, who are in judicial service, claimed that in case before joining 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 notwithstanding that on the date of application /appointment, he or she is in judicial service of the Union or State.

Yet another category is that of the persons having completed only 7 years of service as judicial service. They contended that experience as a judge be treated at par with the practice at the Bar, 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 an advocate. They claimed eligibility to stake their claim against the quota for the Bar.

The central argument advanced is that Article 233(2) provides two sources of recruitment; one is from judicial service, and the other is from Bar. Thus, a person in judicial service with 7 years’ experience of practice at the Bar, before joining service (or combined with service as a judicial officer), can stake a claim under Article 233(2) as against the posts reserved for those having experience of 7 years as an advocate/pleader. It is argued that Articles 233(1) and 233(2)deal with direct recruitment, as is apparent from the Constitution Bench decision of the Supreme Court in the case – HC of Punjab & Haryana v. State of Haryana- (1975) 1SCC 843.

On the other hand, It was submitted on behalf of various HCs as well as on behalf of the practicing advocates that Article 233(2) contemplates direct recruitment only from the Bar and the person should not be in judicial service for the post of direct recruitment. They can be only promoted. By their volition they can join the subordinate judicial service and having done so, they can only be promoted to the higher judicial service as provided in the rules.

It was further submitted that the decisions in the cases – Rameshwar Dayal v. State of Punjab-AIR 1961 SC 816 and Chandra Mohan V. State of U.P. – AIR 1966 SC 1987 rather than espousing the submissions on behalf of in-service candidates, negate the same.

The Apex-Court has pointed out that opportunities are provided not only to in-service candidates but also to practicing candidates by the Constitutional Scheme to excel and to achieve what they aspire, that is, appointment as District Judge. However, when someone joins a particular stream, that is, judicial service by his own volition, he cannot sail in two boats. His chance to occupy the post of District Judge would be by a two-fold channel, either in the 50%seniority/merit quota by promotion, or the quota for limited competitive examination.

The recruitment from the Bar also has a purpose behind it. The practicing advocates are recruited not only in the higher judiciary but in the High Court and Supreme Court as well. There is a stream (of appointment) for in-service candidates of higher judiciary in the HC and another stream clearly earmarked for the Bar. The members of the Bar also become experts in their field and gain expertise and have the experience of appearing in various courts. 

Consistently, the SC has in its previous judgments taken the view, which it has taken in this judgment. It has absolutely no reason to take a different view, though it was urged that mistakes committed earlier should not continue. The Court found this submission devoid of substance and based upon misapprehensions. According to SC, these decisions are vivid and clear, and there is no room to entertain such a submission then for a moment.

Even otherwise, when the law has been administered in this country after independence in the manner on the principle of stare decisis and rules framed by various HCs, the Court stated that it was unable to accept this sort of submission raised on behalf of the in-service candidates. The purpose is recruitment from Bar of a practicing advocate having minimum 7 years’ experience.

In view of this interpretation of Article 233, The Court’s finding is that rules debarring judicial officers from staking their claim as against the posts reserved for direct recruitment from Bar are not ultra vires as rules are subservient to the provisions of the Constitution.

Answering the Reference the Court has held that the members of the judicial service of the State can be appointed as District Judges by way of promotion or limited competitive examination. 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.

The decision in the case of Vijaykumar Mishra & Another v. Patna HC & Others (2016) 9 SCC 313 has been overruled by the SC holding that it did not lay down correct law, as it provided for direct appointment of in-service candidates as District judge.