Can Civil Judges Apply For The Post Of District Judges

Key takeaways

● A petition is filed in the Supreme Court regarding the decision of 2020 that barred the Civil Judges from competing for direct recruitment to District Judge.

● Dheeraj Mor v High Court of Delhi, the HC held that Civil Judges can not be directly recruited to the District Judge.

● Mr Bhushan brought the issue before the Chief Justice of India as it involves substantial questions of law as to the interpretation of Article 233 of the Constitution.

● The SC held that this matter will be discussed in Open Court.

Introduction

The Supreme Court has agreed to hear open court review petitions challenging its 2020 decision that barred Civil Judges from competing for direct recruitment to District Judgeships. The matters to be heard after the vacations were specified by a bench of Justices L. Nageswara Rao, Vineet Saran, and Ravindra Bhat on Monday.

In the case, Dheeraj Mor v High Court of Delhi, the question of whether Civil Judges would pursue direct recruitment to the post of District Judges notwithstanding the quota reserved for candidates from the Bar was referred to a larger bench.

On January 23, 2018, a division bench comprising Justices Kurian Joseph and Mohan M Shantanagoudar rendered the referral, observing that the case involved a substantive question of law regarding the interpretation of Article 233 of the Constitution. Following that, a three-judge bench of Justices Arun Mishra, Saran, and Bhat ruled in February 2020 that civil Judges are not qualified for direct recruitment to the post of District Judge in the bar quota.

Facts of the case

● Insofar as the matter had been heard by a three-judge bench after the reference order, Senior Advocate Jayant Bhushan, appearing for one of the appeal petitioners, raised a jurisdictional question as a basis for review "Following the reference order of January 23, 2018, the case should be heard by a five-judge panel rather than three. This gets to the heart of the issue."

● Mr Bhushan stated that, based on the arguments and materials presented to it, as well as the ratio and observations in the cases mentioned in the order, "some of which (as the bench stated) are apparently diverse," the division bench was of the opinion that "these cases involve substantial questions of law as to the interpretation of Article 233 of the Constitution."

● As a result, we believe that this matter should be brought before the Hon'ble Chief Justice of India for the formation of an appropriate Bench," Mr Bhushan said on Monday, as the bench had previously directed.

● The senior counsel drew the bench's attention to Article 145(3), which states that the minimum number of Judges to sit for the purpose of deciding any case involving a substantive question of law as to the Constitution's interpretation or hearing any reference under Article 143 is five benches.

● Mr Bhushan emphasised that the Article states that if the Court has less than five judges and the Court determines during the hearing of the appeal that the appeal involves a substantive issue of law as to the interpretation of the Constitution, the Court shall refer the question to a Court-appointed as prescribed by clause (3) of Article 145 for opinion.

● "In this situation, the 'appropriate bench' was to be a five-judge panel... Your Lordships can review it if a mistake is made in not bringing it before a 5-judge bench," Mr Bhushan pleaded.

● "The Court said that the interpretation of the Constitution occurs in a large number of cases, and hence, everything cannot go to a constitution bench," he said, referring to Shrimanth Balasaheb Patil's case in 2020.

● Such conditions must be met for such a reference to be valid; for example, if the point of constitutional interpretation is not essential or fundamental to the problem at hand, but rather incidental, 145(3) would not apply.

● It would not matter if previous benches have already decided on the topic and the problem is fully addressed. A reference must be made if there is no authoritative pronouncement on the issue or if the bench believes there is no authoritative pronouncement on the issue."

Court’s Observation

● This claim had never been raised before, according to Justice Bhat. "My briefing counsel had argued and discussed this issue at the time. Another lawyer had submitted written submissions that addressed the same topic. This can also be noted by the review bench and brought before a panel of five judges. The case concerned a significant legal dispute concerning the application of Article 233. It was expected to be heard by a suitable bench, which could only have been a five-judge panel "Mr Bhushan answered,

● In the instant case, the reference bench had only stated that there appears to be a dispute, according to Justice Bhat. "It didn't mention anything about interpreting a constitutional clause." A Constitution bench decision could not be questioned. There was no mention of whether a decision was correct or incorrect.

● The reference bench had noted that Justice Chelameswar's decision was on a different note (in 2016, a bench led by Justice J. Chelameswar held that an in-service judge did not need to resign from his or her post in order to participate in the direct recruitment process for District Judge). However, the ruling was limited to qualifications to participate in the selection process and did not address appointment eligibility.) Otherwise, the Judge said, "all other judgments are reasonably consistent."

● "It's possible that this isn't a 145(3) matter. On this, there are two 5-judge bench rulings. This is well-trodden territory. The only question was whether or not fitness for appointment as a District Judge must be determined at the time of application or only after the appointment has matured ", the Judge continues. If presented before the three-judge bench in 2020, Justice Bhat pointed out that the contention that the matter should have been heard by a five-judge bench should be placed on record by the concerned advocate claiming that they had argued the point but it was not considered.

Comments of the Parties

● Mr Bhushan answered, "My briefing lawyer, Mr Ajay Kumar Singh, may file an affidavit that he posed this question in his arguments." It was also in the opening argument by senior advocate Vibha Datta Makhija that it was demanded that the matter be heard by a five-judge bench, according to advocate Aljo K Joseph. "I was present in the courtroom at the time. All of this had happened in front of my eyes. My writ petition was also on the list at the time "He took a step forward.

● "An affidavit is filed by you. Check with Ms Makhija to see if she agrees. Make no submissions in her name. We will send out a note. We'll take it after the holiday if it's not urgent. If you want to file an affidavit, go ahead and do so ", Justice Rao said.

● "Anyway, whether it was argued or not, whether the Constitution says a matter should be heard by a five-judge bench and it is only heard by three, it is a basis for investigation," Mr Bhushan pressed.

● Also, there is a mistake on the face of the record: the Court misinterpreted Rameshwar Dayal and Chandra Mohan. Mr Bhushan pressed, "On the merits of the case, there is a mistake in construing the earlier Constitution Bench judgement."

● "If Civil Judges with 7 years of experience as an advocate are allowed in the direct recruitment quota, they can compete with fresh graduates, lowering the quota for fresh graduates...", Justice Bhat clarified.

● "The case will be listed in open court." Then you must persuade us," Justice Rao said.

Background

● In February 2020, the Supreme Court ruled that members of the lower judiciary, such as magistrates and Civil Judges, are ineligible for direct appointment to District Judgeships, which is reserved for lawyers with seven years of experience.

● During the pendency of the petition, the top court ordered that judicial officers who were named as District Judges by direct recruitment must return to their original positions.

● However, it stated that magistrates and Civil Judges may be promoted based on merit and seniority or appointed to the position of District Judge via a restricted competitive review.

● The Supreme Court ruled that members of the judicial service with seven years of practice prior to joining the service, or seven years of combined experience as a lawyer and a member of the judiciary, are ineligible to qualify for direct recruitment as District Judges.

● Article 233 of the Constitution, which deals with the selection of District Judges, was unanimously interpreted by a bench of justices Arun Mishra, Vineet Saran, and S Ravindra Bhat.

● "We are of the opinion that for direct recruitment as District Judge against the quota set for advocates/pleaders, the incumbent must be a practising advocate and must be in practice as on the cut-off date, and he must not be in judicial service or other Union or State services at the time of appointment," the bench said.

● An individual who is already employed by the Union or the State is ineligible to be named as a District Judge, according to Article 233 (2).

● An individual who is qualified for the position of District Judge must have at least seven years of experience as an attorney or a pleader and be recommended for appointment by the High Court. The Court explained that experience gained in judicial service cannot be equated or contrasted with seven years of experience as an advocate.

● "Advocates must have practised for at least seven years in the previous seven years, must be practising on the cut-off date set by the regulations when applying, and must be practising as an advocate on the date of appointment." The aim is to hire a practising attorney with at least seven years of experience from the bar," the Supreme Court said.

● "The rules framed by the High Court prohibiting judicial service officers from staking claim to the position of District Judge against the posts reserved for advocates by way of direct recruitment, cannot be said to be ultra vires and are in accordance with Articles 14, 16 and 233 of the Constitution," Justice Mishra wrote in his 84-page verdict.

● It is stated that the governor of a state has the power to make appointments, promotions, postings, and transfers and that eligibility is regulated by the rules outlined in Articles 234 and 235 of the Constitution.

● The Supreme Court overturned a 2016 Patna High Court decision that permitted in-service judicial officers to compete with lawyers for the position of the District Judge, claiming that the law was not correctly drafted.

● It stated that while a batch of pleas filed by various lower judiciary officers was pending, interim orders were issued from time to time allowing them to sit for the District Judge review.

● "In cases where such in-service incumbents were named by direct recruitment from the bench, we see no validity in the petitions, and due to the dismissal of the judicial officers' writ petitions, no fruits can be ripened on the basis of selection without qualifications, and they are unable to continue as District Judges. They must be restored to their original position "It was said.

● The Top Court went on to say that lower judiciary officers cannot assert any rights based on an interim order that was contingent on the outcome of the writ petition and that they must be reverted.

Conclusion

The constitutional scheme provides opportunities for in-service candidates as well as practising candidates to succeed and accomplish their goals, such as appointment as a District Judge. When anyone chooses to enter a specific stream, such as judicial service, he cannot sail in two vessels. Justice Bhat agreed with the findings of Justices Mishra and Saran but provided his own explanation. Thus, the matter will be heard in Open Court.