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PETITIONER: SATYA NARAIN SINGH ETC. ETC.

       Vs.

RESPONDENT: THE HIGH COURT OF JUDICATUREAT ALLAHABAD & ORS., ETC. ETC.

DATE OF JUDGMENT27/11/1984

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) SEN, A.P. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1985 AIR  308            1985 SCR  (2) 112  1985 SCC  (1) 225        1984 SCALE  (2)790

ACT:      Constitution   of   India   - article  233  Appointment of District   Judges-Interpretation  of - Persons already in service cannot   be  appointed  District  Judges  by  direct recruitment. Clause(2)  of Art.233  is  applicable  only  to persons not  already in the  Service of the Union o r of the State -  Service  here  means judicial  service  Requirement of seven  years  practice  at  bar necessary only in case of persons not already in service

HEADNOTE:      In   response   to an advertisement by the  High  Court of Allahabad, the petitioners, who were members of the Uttar Pradesh Judicial  Service, applied to be appointed by direct recruitment to   the  Uttar Pradesh Higher Judicial Service. The   petitioners claimed   that they had acquired 7 years h of practice  at the   bar even  before  their appointment to that Service.  The   High   Court held  that members  of the Uttar Pradesh  Judicial Service  were   not eligible   to be appointed by  direct recruitment  to Uttar   Pradesh  Higher Judicial  Service.   Before  this   Court  the   petitioners submitted  that   a  construction   of  Art.   233  of   the Constitution  which would render a member of the Subordinate Judicial Service   ineligible  for appointment to the Higher Judicial Service  by   direct  recruitment  because  of  the additional experience  gained by  him as  a Judicial officer would be both 11 unjust and paradoxical.      Affirming     the  decision   of  the  High  Court  and dismissing the petitions, ^      HELD: Two  points straightway  project themselves  when the two  clauses of  Art. 233  of the Constitution are read: ’The   first clause  deals with  ’appointments of persons to be, and  the posting  and   promotion of, district judges in any State  while the   second  clause   is confined  in  its application to  persons not  already   in the service of the Union or of the 113 State’.   ’Service of  the Union  or of the State’ has  been interpreted by  A this Court to mean judicial service. While the  first clause  makes consultation by the Governor of the

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State with   the  High   Court necessary,  the second clause requires that   the   High  Court  must  recommend  a person for appointment   as   a   District  Judge. It  is  only  in respect of  the persons  covered by  the second  clause that there is  a requirement  that   person shall be eligible for appointment as  District Judge if he has been an advocate or a pleader  for not less than 7 years. In other words, in the case of  candidates   who are  not  members  of  a  Judicial Service   they   must have   been  advocates or pleaders for not less  than 7   years  and they have to be recommended by the High  Court before  they may   be  appointed as District Judges, while in the case of candidates who are members of a Judicial Service  the 7  years rule has no  application  but there has  to be consultation with the High  Court.  A clear distinction is  made between the two sources of  recruitment and   the   dichotomy is  maintained. The  two streams   are separate until they come together by appointment. [116 D-G]      Ramcshwar   Dayal v.  Stat of  Punjab, [196112  SCR 874 and Chander   Mohan  v. State of Uttar Pradesh, [1967] I SCR 77,  referred to.

JUDGMENT:      original Jurisdiction:  Writ  Petition  Nos.  16087  of 1984, 728 of 1981 and 15926 of 1984.      Under Article 32 of the Constitution of India.      L.   N.   Sinha, Mrs.  Shyamla Pappu, Arvind Kumar,  R. D. Upadhya   and   C.K   Ratnaparkhi  for the Petitioner  in W.P.  Nos. 15926/84 & 16087/84.      K.K.   Venugopal, Arvind  Kumar and  Mrs. Laxmi  Arvind the Petitioner in WP. No. 728 of 1981. F      Gopal   Subramaniam   and Mrs.  Shobha Dikshit for  the Respondents.      The Judgment of the Court was delivered by      CHINNAPPA   REDDY, J.  The petitioners  in the  several writ petitions   now  before   us as well as the  appellants in  Civil Appeal No. 548 of 1982 and the petitioners in Writ Petition  Nos. 6346- H 114 6351   of 1980 which we dismissed on 11th October, 1984 were members   of the Uttar Pradesh Judicial Service in 1980 when all   of them,  in response  to an advertisement by the High Court of   Allahabad,  applied to  be  appointed  by  direct recruitment to  the Uttar  Pradesh  Higher Judicial Service. They claimed  that each  of   them had  completed 7 years of practice at the bar even  before  their appointment  to  the Uttar Pradesh  Judicial   Service   and    were,  therefore, eligible to  be appointed  by direct  recruitment  to    the Higher Judicial  Service. As  there was a question about the eligibility   of  members  of  the  Uttar  Pradesh  Judicial Service  to  appointment by direct recruitment to the Higher Judicial   Service, some of them filed writ petitions in the Allahabad High  Court the  said petitions were dismissed and it was  held that  members of  the  Uttar  Pradesh  Judicial Service were  not  eligible  to  be    appointed  by  direct recruitment to  the Uttar  Pradesh Higher Judicial  Service. Civil Appeal  No. 548 of 1982 was filed in this Court  after obtaining     special  leave   under   Art.   136   of   the Constitution.   By virtue  of the  inter in  order passed by this Court, members of the Uttar  Pradesh  Judicial Service, who desired  to  appear  at  the examination  and  selection were allowed  to so   appear,   but   the  result    of  the selection was  made subject  to the  outcome   of  the civil appeal   and the  writ petitions in this  Court.  The  civil

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appeal   and   some of  the writ petitions were dismissed by us   on October  11, 1984.  The remaining writ petitions are now before  us. Shri   Lal  Narain Sinha  and Shri K.K. Venu gopal, Learned   Counsel  who appeared  for the petitioners, tried to  persuade us  to re-open the  issue, which had been concluded by  our decision   on   October  11,  1984. Having heard them,  we are  not satisfied that there  is any reason for re-opening  the issue.  When we  dismissed  the    civil appeal   and  the writ petitions on the former occasion,  we were content to merely affirm the judgment of the High Court of   Allahabad   without giving  our own reasons. In view of the   arguments advanced,  we consider that it may be better for us  to  indicate briefly our reasons.      The   submission of  Shri Lal  Narain Sinha  and   Shri K.K. Venu   gopal   was  that there  was  no  constitutional inhibition  against  members  of  any  Subordinate  Judicial Service seeking to be appointed as District Judges by direct recruitment provided   they  had completed 7 years’ practice st the  bar. The submission of the learned  counsel was that members of the  Subordinate  Judiciary, who had 115      put   in 7  years’ practice  at the bar before  joining the Subordinate   A  Judicial Service  and  who  had  gained experience     as  Judicial     officers    by  joining  the Subordinate  Judicial  Service ought to be considered better fitted for  appointment as   District  Judges because of the additional  experience   gained  by   them  rather  than  be penalised for  that reason.  The learned  counsel  submitted that   a construction  of Art. 233 of the Constitution which would render   a member of the Subordinate Judicial  Service ineligible for   appointment  to the Higher Judicial Service because   of   the additional   gained  by him as a Judicial officer   would   be   both unjust   and paradoxical. It was also suggested that it  would  be extremely  anomalous  if a member of  the Uttar   Pradesh  Judicial Service who, on the present  construction   of  Art.  233  is    ineligible  for appointment as  a District  Judge by  direct recruitment, is nevertheless   eligible  to be appointed as a judge  of  the High Court  by reason of Art. 217(2) (aa.) on the other hand Sri Gopala  Subramanium, learned  counsel for the respondent urged  that     there  was    a  clear  demarcation  in  the Constitution between  two   sources of   recruitment namely: (1). those  who were  in the  service  of  a State  or Union and (2).  those who were not in such  service.  He contended that the  second clause  of Art. 233 ! was attracted only to the   second   source and  in respect  of   candidates  from that source   the  further qualification  of 7  years as  an advocate  or     a   pleader    was    made  obligatory  for eligibility. According  to  Mr. Gopala  Subramanium, a plain reading of  both the  clauses of  Art. 233 showed that while the second  clause of  Art. 233  was   applicable   only  to those who  were not  already in  service,  the  first clause was applicable  to those  who were  already in  service.  He urged  that  any other construction would lead to  anomalous and absurd   consequences  such as  a junior  member of  the Subordinate Judicial   Service  taking a  leap, as  it were, over senior   members  of the  Judicial  Service  with  long records of  meritorious service. Both  sides relied upon the decisions of  this Court  in   Rameshwar Dayal   v. State of Punjab(l) and Chander Mohan v. State of  Uttar Pradesh(2).      (1) [1961] 2 S.C.R. 874.      (2) [1967] 1 S.C.R. 77. 116  Article 233 is as follows:-      "233(1)   Appointments  of   persons  to  be,  and  the

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    posting and  promotion of, district judges in any State      shall be made by the Gover nor   of the  State in  consultation  with  the  High  Court exercising jurisdiction in relation to such State.      (2)  A   person not already in the service of the Union      or of  the State shall only be eligible to be appointed      a district  judge   if he   has  been for not less than      seven  years   as  an  advocate    or  pleader  and  is      recommended by the High Court for appointment."      Two   point straightway  project themselves  when   the two clauses of Art. 233 are read:  The first clause deals with ’appointments of persons to be, and the  posting and  promotion of,  district judges  in any State’  while   the  second   clause  is   confined  in  its application to persons  ’not already  in  the service of the Union or  of the  State’.  We  may mention here that Service of the Union or of the State’ has  been interpreted  by this Court to  mean judicial  service. Again   while  the   first clause make  consultation by the Governor of the  State with the High  Court necessary, the second clause  requires  that the  High Court must recommend a person for appointment as a District Judge. It is only in respect of the persons covered by   the second  clause that  there is  a requirement that a person shall   be  eligible   for   appointment as  District Judge if  he   has   been   an advocate or a pleader for not less than  7 years.  In other   words,  in   the   case   of candidates who  are not  members   of   a   Judicial Service they must  have been  advocates or  pleaders for   not  less than   7 years  and they have to be recommended by the  High Court before   they   may  be appointed  as District Judges, while   in   the case   of  candidates who  are members of a Judicial Service   the  7 years  rule has no application but there has  to   be   consultation with  High  Court. A clear distinction is  made    between    the    two  sources    of recruitment and  the  dichotomy  is  maintained.  The    two streams   are    separate  until  they  come  together    by appointment. Obviously   the  same slip cannot sail both the streams   simultaneously.   The dichotomy is clearly brought out by  S.K. Das,  J.  in Rameshwar Dayal v. State of Punjab (supra) where he observes: 117      "..  Article   233  is   a  self   contained  provision      regarding A   the   appointment  of District Judges. As      to a   person   who   is already  in the service of the      Union or  of the State, no  special qualifications  are      laid down  and under  cl. (1) the Governor  can appoint      such a  person as  a district  judge in    consultation      with the  relevant High  Court.  As  to  a  person  not      already in service, a qualification is laid down in cl.      (2) and  all that  is required is that  he should be an      advocate or pleader of seven years’  standing." Again dealing with the cases of Harbans Singh and Sawhney it was observed,  "We  consider that even if we proceed on  the footing that   both   those  persons were recruited from the Bar   and   their  appointment  has  to  be  tested  by  the requirements of Clause(2), we must  hold that they fulfilled those requirements".   Clearly   the  Court  was  expressing the   view that it  was  in  the  case  of recruitment  from the Bar,  distinguished from   Judicial   Service  that  the requirements of Cl. (2) had to be fulfilled. We may also add here earlier  the Court  also expressed  the view, "...we do not think that Cl. (2) of Art. 233 can be interpreted in the light of the Explanation added to Articles 124 and 217."      In Chandra  Mohan v.  State of  Uttar  Pradesh  (supra) Subba Rao,   C.J.  after referring to Articles 233,234, 235,

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236 and  237 stated,- E      "The   gist   of the  said provisions  may be    stated thus: Appointments of persons to be, and the posting and pro motion of, district judges in any State shall be made by the Governor of the State. There are two sources of recruitment, namely, (i)   service or  the Union or of the State and (ii) members of Bar.  The  said judges  from the first source are appointed in  consultation   with the  High Court  and those from the  second source are appointed  on the recommendation of the  High Court.  But in  the case  of appointments    of persons to  the judicial  service other  than as    district judges, they  will be  made by  the Governor of the State in accordance with rules framed by him in consultation with the High Court  and the  Public Service Commission. But the High Court has control over  all  the district courts and  courts subordinate     thereto,  subject   to  certain   prescribed limitations." 118 Subba Rao,  CJ.  then  proceeded  to  consider  whether  the Government could  appoint as  district judges  persons  from services other  than the   judicial  service. After pointing out that Art. 233(1) was  a declaration of the general power of the  Governor in  the matter  of appointment  of district judges and  he did  not lay down the qualifications  of  the candidates to  be   appointed  or  denoted  the sources from which the recruitment had to be made, he proceeded to state,      "But the  sources of  recruitment are  indicated in cl.      (2) thereof.   Under cl. (2 of Are. 233 two sources are      given   namely,   (i) persons   in   the service of the      Union or of the State,  and  (ii) advocate or pleader."      Posing    the  question  whether  the  expression  "the service of   the Union or of the State" meant any service of the Union   or  of   the   State or  whether  it  meant  the judicial   service   of   the Union   or   of the State, the learned  Chief     Justice     emphatically  held  that  the expression "the  service" in  Art. 233(2)  could   only mean the   judicial service.  But he did not mean  by  the  above statement   that persons   who  are already in the  service, on   the recommendation  by  the High Court can be appointed as   District Judges,  overlooking the  claims of  all other Seniors in the Subordinate Judiciary Contrary to Art. 14 and Art. 16 of the Constitution.      Thus   we   see that  the two decisions do not  support the contention   advanced  on behalf of the petitioners but, to   the extent   that  they  go, they certainly advance the case   of   the respondents.  We therefore, see no reason to depart from  the   view  already    taken    by  us  and  we accordingly dismiss the  writ  petitions. H.S.K.                                  Petitions dismissed. 119