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(REPORTABLE)

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE/ORIGINAL/INHERENT JURISDICTION

CIVIL APPEAL NO. 1698 OF 2020 [ARISING OUT OF S.L.P. (C) NO.14156 OF 2015]

DHEERAJ MOR        … APPELLANT(S) VERSUS

HON’BLE HIGH COURT OF DELHI        … RESPONDENT(S)

WITH

CIVIL APPEAL NO. 1699 OF 2020 [ARISING OUT OF S.L.P. (C) No. 14676/2015]

CIVIL APPEAL NO. 1700 OF 2020 [ARISING OUT OF S.L.P. (C) No. 24219/2015

CIVIL APPEAL NO. 1701 OF 2020 [ARISING OUT OF S.L.P. (C) No. 30556/2015

W.P. (C) No. 77/2016

W.P. (C) No. 130/2016

W.P. (C) No. 405/2016

W.P. (C) No. 414/2016

CIVIL APPEAL NO. 1702 OF 2020 [ARISING OUT OF S.L.P. (C) No. 15764/2016

W.P. (C) No. 423/2016 CIVIL APPEAL NO. 1707 OF 2020

[@ SPECIAL LEAVE PETITION (C) NO. 4781 OF 2020] [ARISING OUT OF S.L.P. (C)...CC No. 15018/2016]

CIVIL APPEAL NO. 1703 OF 2020 [ARISING OUT OF S.L.P. (C) No. 23823/2016]

CIVIL APPEAL NO. 1704 OF 2020 [ARISING OUT OF S.L.P. (C) No. 24506/2016]

CIVIL APPEAL NO. 1706 OF 2020 [ @ SPECIAL LEAVE PETITION (C) NO. 4778 OF 2020]

[ARISING OUT OF S.L.P. (C)...CC No. 15304/2016]

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W.P. (C) No. 600/2016

W.P. (C) No. 598/2016

W.P. (C) No. 601/2016

W.P. (C) No. 602/2016

W.P. (C) No. 733/2016

W.P. (C) No. 189/2017

W.P. (C) No. 222/2017

W.P. (C) No. 316/2017

W.P. (C) No. 334/2017

W.P. (C) No. 371/2017

W.P. (C) No. 96/2018

W.P. (C) No. 102/2018

W.P. (C) No. 103/2018

T.P. (C) No. 272/2018

W.P. (C) No. 108/2018

W.P. (C) No. 110/2018

W.P. (C) No. 106/2018

W.P. (C) No. 146/2018

W.P. (C) No. 123/2018

W.P. (C) No. 124/2018

W.P. (C) No. 138/2018

W.P. (C) No. 155/2018

W.P. (C) No. 145/2018

W.P. (C) No. 158/2018

W.P. (C) No. 174/2018

CIVIL APPEAL NO. 1705 OF 2020 [ARISING OUT OF S.L.P. (C) No. 8480/2018]

W.P. (C) No. 291/2018

W.P. (C) No. 287/2018

W.P. (C) No. 344/2018

W.P. (C) No. 352/2018

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W.P. (C) No. 387/2018

W.P. (C) No. 392/2018

W.P. (C) No. 396/2018

W.P. (C) No. 530/2018

W.P. (C) No. 519/2018

W.P. (C) No. 535/2018

W.P. (C) No. 581/2018

W.P. (C) No. 578/2018

W.P. (C) No. 612/2018

W.P. (C) No. 629/2018

W.P. (C) No. 596/2018

W.P. (C) No. 616/2018

W.P. (C) No. 632/2018

W.P. (C) No. 608/2018

W.P. (C) No. 628/2018

W.P. (C) No. 617/2018

W.P. (C) No. 624/2018

W.P. (C) No. 631/2018

W.P. (C) No. 635/2018

W.P. (C) No. 636/2018

W.P. (C) No. 641/2018

W.P. (C) No. 642/2018

W.P. (C) No. 639/2018

W.P. (C) No. 640/2018

W.P. (C) No. 650/2018

W.P. (C) No. 644/2018

W.P. (C) No. 658/2018

W.P. (C) No. 659/2018

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W.P. (C) No. 680/2018

W.P. (C) No. 671/2018

W.P. (C) No. 677/2018

W.P. (C) No. 681/2018

W.P. (C) No. 686/2018

W.P. (C) No. 703/2018

W.P. (C) No. 696/2018

W.P. (C) No. 717/2018

W.P. (C) No. 728/2018

W.P. (C) No. 726/2018

W.P. (C) No. 727/2018

W.P. (C) No. 1272/2018

W.P. (C) No. 1302/2018

W.P. (C) No. 656/2019

W.P. (C) No. 744/2019

W.P. (C) No. 999/2019

W.P. (C) No. 1054/2019

W.P. (C) No. 1053/2019

W.P. (C) No. 1080/2019

W.P. (C) No. 1073/2019

W.P. (C) No. 1089/2019

W.P. (C) No. 1086/2019

W.P. (C) No. 1150/2019

CONMT.PET. (C) No. 1023/2019 in W.P.(C) No. 414/2016

W.P. (C) No. 1266/2019

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J U D G M E N T

ARUN MISHRA, J.

1. A Division Bench of this Court  has referred the matters.  The

question involved in the matters is the interpretation of Article 233 of

the Constitution of India as to the eligibility of members of the

subordinate judicial service for appointment as District Judge as

against the quota reserved for the Bar by way of direct recruitment.

The petitioners who are in judicial service, have 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 contend that experience as a judge be treated at par with the Bar

service, 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

advocate.  They claim to be eligible  to stake their claim against the

above quota.

2. The central argument advanced is that Article 233(2) provides

two sources of recruitment; one is from judicial service, and the other

6                                                                                                                                  is from Bar. Thus, a person in judicial service with experience of 7

years  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. Reliance has been placed on the decisions of this

Court in Rameshwar Dayal v. State of Punjab & Ors., AIR 1961 SC 816

and in Chandra Mohan v. State of Uttar Pradesh & Ors., (1967) 1 SCR

77 = AIR 1966 SC 1987 to submit that under Article 233(2) there are

two sources of direct recruitment to the higher judicial service; one

from the Bar and the other from service. The decisions of Constitution

Bench in  Chandra Mohan  (supra) and  Rameshwar Dayal  (supra) are

binding. The decision to the contrary in  Satya Narain Singh v. High

Court of Judicature at Allahabad & Ors.,  (1985) 1 SCC 225 taking a

departure negating the right of the member of the judicial service and

confining the direct recruitment from the Bar through practicing

advocates effectively whittle down the law laid down in  Chandra

Mohan (supra) and Rameshwar Dayal (supra).

3. It is argued that articles 233(1) and 233(2)  inter alia  deal with

direct recruitment, as is apparent from the Constitution Bench

decision of this Court in the High Court of Punjab & Haryana v. State

of  Haryana, (1975)  1  SCC 843.  The rules framed by various  High

Courts disqualifying the members of subordinate judicial service from

7                                                                                                                                  direct recruitment to the higher judicial service are not in consonance

with the law laid down in  Chandra Mohan  (supra) and  Rameshwar

Dayal (supra) and the provisions contained in Article 233.  The rules,

which completely cut off one stream and provide only one stream of

direct recruitment then the High Court’s rules would have to be

declared ultra vires being violative of Article 233. It was further

submitted that the rules  framed by various High Courts arbitrarily

discriminate between advocates and the members of the judicial

service in the matter of direct recruitment, the rules suffer from the

vice of  arbitrariness.  It  was also submitted that the decision in  All

India Judges’ Association v. Union of India, (2002) 4 SCC 247 has been

rendered by a Bench of three Judges.   The decision cannot overturn

the  two earlier  Constitution Bench  judgments of this  Court. In  All

India  Judges’  Association  case  (supra), the Court  proceeded on the

basis that there  was  only one source of direct recruitment to the

higher judicial service, which is violative of the dictum laid down by a

larger Bench of this Court in Rameshwar Dayal (supra) and Chandra

Mohan  (supra). The decision in  All India Judges’ Association case

(supra)  is  inadvertent and cannot be said to be binding. The quota

system from the service and the Bar would apply to those who apply

within the quota. The quota system cannot override the constitutional

scheme of Article 233(1) and (2).

8                                                                                                                                  4. Reliance has also been placed on behalf of the petitioners upon

the decision in Vijay Kumar Mishra & Anr. v. High Court of Judicature

at Patna & Ors., (2016) 9 SCC 313 in which it has been held that the

bar prescribed under Article 233(2) prohibits only the appointment of

persons in service of Central/State Government and not their

participation in the recruitment process. It is the constitutional right

of such persons as well to participate in the selection process. In case

they are selected, they can resign and join the post.

5. On the other hand, it was submitted on behalf of various High

Courts 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 only be promoted. By their volition they can

join the subordinate judicial service. 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 Rameshwar Dayal (supra) and

Chandra  Mohan  (supra) rather than  espousing  the  submissions  on

behalf of in­service candidates, negate the same. The decision in

Satya Narain Singh (supra) has also considered the aforesaid decisions

and has opined that there are two different streams, and the

candidates from the judicial service cannot stake their claim as

against the posts reserved for direct recruitment from the Bar. Similar

9                                                                                                                                  is the law laid down by this Court in the case of Deepak Aggarwal v.

Keshav Kaushik & Ors., (2013) 5 SCC 277. It was further submitted

that the decision in All India Judges Association (supra) has prescribed

a quota for merit promotion from the in­service candidates and 25% of

the  quota for  direct recruitment from  the  Bar.  Also, the  quota for

limited competitive examinations fixed was reduced to 10% in All India

Judges' Association v. Union of India, (2010) 15 SCC 170. It was

further submitted that there is a separate quota provided under the

rules framed by various High Courts, but now there is a roster system

as well. Roster system has also been made applicable for fixing the

seniority  of the  incumbents recruited  from in­service  candidates as

well as directly from the Bar.  In this regard reference has been made

to the decision of this Court in Punjab & Haryana High Court v. State

of Punjab, (2018) SCC OnLine SC 1728.

6. The main question for consideration is the interpretation of

Article 233 of the Constitution of India, and based upon its

interpretation, the question concerning the rules being ultra vires of

the same 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. Article 233 is extracted hereunder:

10                                                                                                                                  

“233.  Appointment of district judges­­  (1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor 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 an advocate or a pleader and is recommended by the High Court for appointment.”

7. The Hindi version of Article 233 has also been relied upon.  The

same is extracted hereunder:

“  अधययय 6-  अधधनसथ नययययलय

233.     जजलल नयलयलधधशश कध जनययजकक - (1)      जकसध रलजय मम जजलल नयलयलधधश           जनययकक हहनन वललन वयजककयश कध जनययजकक कथल जजलल नयलयलधधश कध पदसथलपनल

           और पपरहननजक उस रलजय कल रलजयपलल ऐसन रलजय कन ससबसध मम अजधकलजरकल कल        पपरयहग करनन वललन उचच नयलयललय सन परलमशर करनगल।

(2)  वह वयजकक,  जह ससघ कध यल रलजय कध सनवल मम  पहलन सन  हध नहधस हह ,  जजलल नयलयलधधश जनययकक हहनन कन  जलए कन वल कभध पलकपर हहगल जब वह कम सन  कम सलक वरर कक अजधवककल यल पलधडर रहल हह  और उसकध जनययजकक कन  जलए उचच नयलयललय नन जसफलजरश कध “हह।

8. It was submitted that Article 394A had been inserted by way of

the Constitution (Fifty­eighth Amendment) Act, 1987.   The same

provides as under:

“394A. Authoritative text in the Hindi language.­­ (1) The President shall cause to be published under his authority,­­

(a) the translation of this Constitution in the Hindi language, signed by members of the Constituent Assembly, with such modifications as may be necessary to bring it in conformity with the language, style and terminology adopted in the  authoritative texts  of  Central  Acts in the Hindi language, and incorporating therein all the amendments of this Constitution made before such publication; and

(b) the translation in the Hindi language of every amendment of this Constitution made in the English language.

(2) The translation of this Constitution and of every amendment thereof published under clause (1) shall be construed to have the same meaning as the original thereof,

11                                                                                                                                  

and if any difficulty arises in so construing any part of such translation, the President shall cause the same to be revised suitably.

(3) The translation of this Constitution and of every amendment thereof published under this article shall be deemed to be, for all purposes, the authoritative text thereof in the Hindi language.”

9. The Hindi translation of the Constitution signed by the members

of the Constituent Assembly was published in 1950 under the

authority of the President of the Constituent Assembly.   The

translation of the Constitution shall be deemed to be the authoritative

text thereof in the Hindi language.   

10. Crawford in  The Construction of  Statutes,  202  (1940) has also

been referred to, especially the following observations:

"In some jurisdictions statutes may be enacted in more than one language.   Where this is the situation, both texts constitute the law and each must be considered in ascertaining the meaning of the legislature."

11. Considering the version in the Hindi  language as well as in the

English language, the meaning is the same, and interpretation does

not change.   There is no room for  any  confusion that they are two

different sources of appointment provided in Article 233.  

12. Article 233(1) provides for appointments by way of posting and

promotion. It is apparent from Article 233 that the appointing

authority the Governor has to exercise the power of appointment in

consultation with the High Court. The term ‘appointment’ is broader

and includes appointment by way of direct recruitment or by way of

12                                                                                                                                  promotion, and sometimes it may also include, if so provided in the

rules, by way of absorption.

13. Article  233(2)  starts with a negative stipulation that  a person

who is not already in the service of the Union or the State, shall be

eligible only to be  appointed  as  District Judge if he  has  been  an

advocate or a pleader for not less than 7 years and is recommended by

the High Court for appointment. The expression ‘in the service of the

Union or of the State’ has been interpreted by this Court to mean the

judicial service. A person from judicial service can be appointed as a

District Judge. However, Article 233(2) provides that a person who is

not in the service of the Union, shall be eligible only if he has been in

practice, as an advocate or a pleader for 7 years; meaning thereby,

persons who are in service are distinguished category from the

incumbent who can be appointed as District Judge on 7 years’

practice as an advocate or a pleader. Article 233(2) nowhere provides

eligibility of in­service candidates for consideration as a District Judge

concerning  a  post requiring  7 years’  practice as  an  advocate or a

pleader. Requirement of 7 years' experience for advocate or pleader is

qualified with a rider that he should not be in the service of the Union

or the State. Article 233 provides two sources of recruitment, one from

judicial service and the other from advocates or pleaders. There are

two separate streams provided; one is for persons in judicial service,

13                                                                                                                                  and the other is for those not in judicial service of the Union or the

State and have practiced for seven years. The expression ‘in service of

the Union or the State’ has been interpreted in Chandra Mohan (supra)

to mean judicial  service,  not any other service of  the Union or the

State. Thus, it is clear that the members of the judicial service alone

are eligible for appointment as against the post of District Judge as

the only mode provided for the appointment of in­service candidates is

by  way  of  promotion.  They can stake their claim as  per rules for

promotion or merit  promotion as the case may be.  This Court  has

excluded the  persons from  the Indian  Civil  Service, the  Provincial

Judicial  Service, or other  Executive  Services, before Independence,

recruitment to the  post  of  District  Judge  was  provided from other

services also. In  Chandra Mohan  (supra), this  Court  held that  no

person from the Executive Service can be promoted as District Judge.

There is separation of the judiciary in terms of Article 50 of the

Constitution of India.  It mandates the State to take steps to separate

the judiciary from the Executive in the public services of the State.

Article 50 is extracted hereunder:

“50. Separation of judiciary  from executive.  ­­  The  State shall take steps to separate the judiciary from the executive in the public services of the State.”

14. Article 233(2) provides that if an advocate or a pleader has to be

appointed, he must have completed 7 years of practice. It is coupled

with the condition in the opening part that the person should not be

14                                                                                                                                  in service of the Union or State, which is the judicial service of the

State. The person in judicial service is not eligible for being appointed

as against the quota reserved for advocates. Once he has joined the

stream of service, he ceases to be an advocate. The requirement of 7

years of minimum experience has to be considered as the practising

advocate as on the cut­off date, the phrase used is a continuous state

of affair from the past. The context ‘has been in practice’ in which it

has been used, it is apparent that the provisions refers to a person

who has been an advocate or pleader not only on the cut­off date but

continues to be so at the time of appointment.

15. Reliance has been placed on  Chandra Mohan v.  State of  U.P.,

(supra) by both the sides, facts of which reflect that Allahabad High

Court called for applications for recruitment to 10 vacancies in the

Uttar Pradesh Higher Judicial Service from Barristers, Advocates,

Vakils and pleaders of more than 7 years’ standing and from judicial

officers.  Six incumbents  were  selected ­ three  advocates  and  three

judicial officers. The Selection Committee sent two lists, one

comprising the names of the three advocates and the other comprising

the  names  of three judicial officers to the  High  Court. There  was

agreement that the selection  from the Bar  was good.  The question

arose about the  legality of  the appointment of judicial  officers.  The

question arose was whether the incumbents who were not members of

15                                                                                                                                  the judicial service could have been appointed as District Judges

under Rule 14. This Court while striking down the Rules interpreted

Article 233 thus:

“7. The first question turns upon the provisions of Art. 233 of the Constitution. Article 233(1) reads:

"Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the  Governor of the  State in consultation  with the  High Court exercising jurisdiction in relation to such State."

We are assuming  for the purpose of these appeals  that the "Governor" under Art. 233 shall act on the advice of the Ministers. So, the expression "Governor" used in the judgment means  Governor acting  on the  advice of the  Ministers. The constitutional mandate is clear. The exercise of the power of appointment by the Governor is conditioned by his consultation with the High Court, that is to say, he can only appoint a person to the post of district judge in consultation with the High Court. The object of consultation is apparent. The High Court is expected to know better than the Governor in regard to the suitability or otherwise of a person, belonging either to the "judicial service" or to the Bar, to be appointed as a district judge. Therefore, a duty is enjoined on the Governor to make the appointment in consultation with a body which is the appropriate authority to give advice to him. This mandate can be disobeyed by the Governor in two ways, namely, (i) by not consulting the High Court at all, and (ii) by consulting the High Court  and also other persons. In one case he directly infringes the mandate of the Constitution and in the other he indirectly does so,  for his mind may be influenced by other persons  not  entitled to  advise  him.  That this  constitutional mandate has both a negative and positive significance is made clear by the other provisions of the Constitution. Wherever the Constitution intended to provide more than one consultant, it has said so: see Arts. 124(2) and 217(1). Wherever the Constitution provided for consultation of a single body or individual it said so: see Art. 222. Art. 124(2) goes further and makes a distinction between persons who shall be consulted and persons who may be consulted. These provisions indicate that the duty to consult is so integrated with the exercise of the power that the power can be exercised only in consultation with the person or persons designated therein. To state it differently, if A is empowered to appoint B in consultation with C, he will not be exercising the power in the manner prescribed if he appoints B in consultation with C and D.”

16                                                                                                                                  

This Court in  Chandra Mohan v. State of U.P.  (supra) also

observed, concerning recruitment from the Bar under Article 233(2),

the Governor can appoint only advocates recommended by the High

Court to the judicial service. This Court has held:  

“11. The position in the case of district judges recruited directly from the Bar is worse.  Under      Art. 233(2)      of the Constitution, the Governor can only appoint advocates recommended by the High Court to the said service. But under the Rules, the High Court can either endorse the recommendations of the Committee or create a deadlock. The relevant rules, therefore, clearly contravene the constitutional mandates of Art. 233(1) and (2) of the Constitution and are, therefore, illegal.”

(emphasis supplied)

16. Rule 14 of U.P. Rules which came up for consideration of this

Court in Chandra Mohan (supra) is extracted hereunder:

“Rule 14. Direct Recruitment.­(1) Applications for direct recruitment to the service shall be called for by the Court and shall be made in the prescribed form which may be obtained from the Registrar of the Court.

(2) The applications by barristers, advocates, vakils or pleaders, should be submitted through the District Judge concerned and must  be  accompanied  by  certificates  of  age, character, nationality, and domicile, standing as a legal practitioner, and such other documents as may be prescribed in this behalf by the Court. Applications from Judicial Officers should be submitted in accordance with the rules referred to in clause 2(b) of rule 5 of these Rules. The District Judge or other officer through whom the application is submitted shall send to the Court, along with the application, his own estimate of the applicant's character and fitness for appointment to the service.”

17. After having answered the question about recruitment from the

Bar, the further question considered in  Chandra Mohan  (supra) was

whether the Governor could directly appoint persons from service

other than judicial service as District Judges in consultation with the

High Court. They belonged to the executive branch of the Government

17                                                                                                                                  and performed certain revenue and ministerial functions. This Court

took note of the fact that in the pre­Independence era, there was a

demand that the  judiciary should be separated from the Executive,

and that was based upon the assumption that unless they were

separated, independence of the judiciary at the lower level would be a

mockery. Thus, Article 50 of Directive Principles of State Policy

provides that States to take steps to separate judiciary from the

executive in public services of the State. There shall be separate

judicial service from the executive service. This Court considered the

provisions of Articles 234, 235, 236 and 237 and observed that there

are two sources of  recruitment,  services of the Union or State and

members of the Bar. This Court observed thus:

“15. With this background,  if the following provisions of the Constitution are looked at, the meaning of the debated expressions therein would be made clear:

We have already extracted Art. 233.

Article  234.  Appointments of persons other than  district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State.

Article 235. The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district Judges shall be vested in the High Court; but nothing in this Article shall  be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.

Article 236. In this Chapter­

18                                                                                                                                  

(a) the expression "district judge" includes judges of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate,  sessions  judge,  additional  sessions  judge and assistant sessions judge:

(b) the expression "judicial service" means a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts  inferior to the post of district judge.

Article 237. The Governor may by public notification direct that the foregoing provisions of this Chapter and any rules made thereunder shall with effect from such date as may be fixed by him in that behalf apply in relation to any class or classes of magistrates in the State as they apply in relation to persons appointed to the judicial service of the State subject to such  exceptions  and modifications  as  may be specified in the notification.

The gist of the said provisions may be stated thus: Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State. There are two sources of recruitment, namely, (i) service of the Union or of the State, and (ii) members of the 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.”                           

   (emphasis supplied)

As to the question whether persons from other services can be

appointed as District Judges, the expression service of Union or State,

has been held to be construed to be judicial service in Article 233(2)

thus:  

“16.  So far there is no dispute. But the real conflict rests on the  question whether the  Governor can  appoint as district judges persons from services other than the judicial service; that is to say, can he appoint a person who is in the police, excise, revenue or such other service as a district judge? The

19                                                                                                                                  

acceptance of this  position would  take us back to the pre­ independence days and that too to the conditions prevailing in the Princely States. In the Princely States one used to come across  appointments to the  judicial  service from police  and other departments. This would also cut across the well­knit scheme of the  Constitution  and  the  principle  underlying it, namely, the judiciary shall be an independent service. Doubtless if Art. 233(1) stood alone, it may be argued that the Governor may appoint any person as a district judge, whether legally qualified or not, if he belongs to any service under the State. But Art. 233(l) is nothing more than a declaration of the general power of the Governor in the matter of appointment of district judges. It does not lay down the qualifications of the candidates to be appointed or denote the sources from which the recruitment has to be made.  But the sources of recruitment are indicated in cl. (2) thereof. Under cl. (2) of      Art. 233      two sources are given, namely, (i) persons in the service of the Union or of the State, and (ii) advocate or pleader. Can it be said that in the context of Ch. VI of Part VI of the Constitution "the service of the Union or of the State" means any service of the Union or of the State or does it mean the judicial service of the Union or of the State? The setting, viz., the chapter dealing with subordinate courts, in which the expression "the service" appears indicates that the service mentioned therein is the service  pertaining to courts. That apart, Art.  236(2) defines the expression "judicial service" to mean a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge. If this definition, instead of appearing in Art. 236, is placed as a clause before Art. 233(2), there cannot be any dispute that "the service" in Art. 233(2) can only mean the  judicial  service.  The circumstance that the definition of "judicial service" finds a place in a subsequent Article does not necessarily lead to a contrary conclusion. The fact that in Article 233(2) the expression "the service" is used whereas in Arts. 234 and 235 the expression "judicial service" is found is not decisive of the question whether the expression "the service" in Art. 233(2) must  be something other than the judicial service, for, the entire chapter is dealing with the judicial service.  The definition is exhaustive  of the  service.  Two  expressions in the  definition bring out the idea that the judicial service consists of hierarchy of judicial officers starting from the lowest and ending with district judges. The expressions "exclusively" and "intended" emphasise the fact that the judicial service consists only of persons intended to fill up the posts of district judges and other civil judicial posts and that is the exclusive service of judicial officers. Having defined "judicial service" in exclusive terms, having provided for appointments to that service and having entrusted the control of the said service to the care of the High Court, the makers of the Constitution would not have conferred  a  blanket  power  on the  Governor to  appoint  any person from any service as a district judge.

20                                                                                                                                  

18.  We, therefore, construe the expression "the service" in cl. (2) of      Art. 233      as the judicial service.”

(emphasis supplied)

18. In  Chandra Mohan v.  State  of  U.P.  (supra), this Court  further

noted the history that the Governor­General in Council had issued a

notification in 1922 empowering the local Government to make

appointments to the said service from the members of the Provincial

Civil Service (Judicial Branch) or the members of the Bar. This Court

had also noted that earlier till India attained Independence, the

Governor­General  made appointments of  District  Judges from three

sources: (i) Indian Civil Service; (ii) Provincial Judicial Service; and (iii)

the Bar. After India attained freedom, recruitment from Indian Civil

Service  was  discontinued  by the  Government of India, and it  was

decided that the members of the newly created Indian Administrative

Service would not be given judicial posts. Thereafter District Judges

were appointed only from either the judicial service or from the Bar.

The rules framed by the Governor empowering him to recruit District

Judges from the judicial officers were held to be unconstitutional. This

Court has observed thus:

“20. The history of the said provisions also supports the said conclusion. Originally the posts of district and sessions judges and additional sessions judges were filled by persons from the Indian Civil Service. In 1922 the Governor­General­in­Council issued a notification empowering the local government to make appointments to the said service from  the  members of the Provincial Civil Service (Judicial Branch) or from the members of the Bar. In exercise of the powers conferred under S. 246(1) and S. 251 of the Government of India Act, 1935, the Secretary of State for India Framed rules styled Reserved Posts (Indian Civil  Service)  Rules,  1938. Under those Rules,  the Governor

21                                                                                                                                  

was given the power to appoint to a district post a member of the judicial service of the Province or a member of the Bar. Though S. 254(1) of the said Act was couched in general terms similar to those contained  in Art.  233(1) of  the Constitution, the said rules did not empower him to appoint to the reserved post of district judge a person belonging to a service other than the judicial service. Till India attained independence, the position was that district judges were appointed by the Governor from three sources, namely, (i) the Indian Civil Service, (ii) the Provincial  Judicial  Service,  and (iii) the Bar. But after India attained independence in 1947, recruitment to the Indian Civil Service was discontinued and the Government of India decided that the members of the newly created Indian Administrative Service would not be given judicial posts. Thereafter district judges have been recruited only from either the judicial service or from the Bar. There was no case of a member of the executive having been promoted as a district judge. If that was the factual position at the time the Constitution came into force, it is unreasonable to attribute to the makers of the Constitution, who had so carefully provided for the independence of the judiciary, an intention to destroy the same by an indirect method. What can be more deleterious to the good name of the judiciary than to permit at the level of district  judges, recruitment from the executive departments? Therefore, the history of the services also supports our construction that the expression "the service" in Art. 233(2) can only mean the judicial service.

(21)  For the aforesaid reasons, we hold that the Rules framed by the  Governor empowering  him  to recruit district judges from the "judicial officers" are unconstitutional and, therefore, for that reason also the appointment of respondents 5, 6 and 7 was bad.

(23)   In the result, we hold that the U.P. Higher Judicial Service Rules providing for the recruitment of district judges are constitutionally void and, therefore, the appointments made thereunder were illegal.  We set aside the order of the High Court and issue a writ of mandamus to the 1st respondent not to make any appointment by direct recruitment to the U.P. Higher Judicial Service in pursuance of the selections made under the said Rules. The 1st  respondent will pay the costs of the appellant. The other respondents will bear their own costs.”

(emphasis supplied) 19. It is apparent from the decision in  Chandra Mohan v. State of

U.P.,  (supra) that this Court has laid down that concerning District

Judges recruited  directly from the  Bar,  Governor  can appoint  only

22                                                                                                                                  advocates recommended by the High Court and Rule 14 which

provided  for  judicial  officers  to be appointed as direct  recruits was

struck down by  this  Court to  be ultra vires.  Thus, the decision  is

squarely against the submission espoused on behalf of in­service

candidates. In the abovementioned para 11 of Chandra Mohan (supra),

the position is made clear. In Chandra Mohan  (supra) the Court held

that only advocates can be appointed as direct recruits, and inter alia

the Rule 14 providing for executive officers'  recruitment was struck

down.  This  Court  has held  that the expression  ‘service  of  State  or

Union’ means judicial service, it only refers to the source of

recruitment.   Dichotomy of two sources of recruitment/appointment

has been culled out in the decision.

20. Reliance has also been placed on  the decision  in  Rameshwar

Dayal v. State of U.P., AIR 1961 SC 816. The question which arose for

consideration there was as to the eligibility of persons on the roll of

advocates of East Punjab High Court before the partition of India in

1947 for appointment as a District Judge. This Court held that the

period of practice before Lahore High Court could be counted as

against the required  period  of  7  years for  appointment  as  District

Judge. This Court laid down that practice rendered in or before the

Lahore High Court before partition was not open to objection under

Article 233(2) of the Constitution. Even if the word ‘advocate’ in clause

23                                                                                                                                  (2) of  Article  233 meant  an  advocate  of  a court in India,  and the

appointee must be such an advocate at the time of his appointment,

no objection can be raised on this ground because being factually on

the roll of   Advocates of the Punjab High Court at the time of

appointment, the candidate was admittedly an advocate in a court in

India and continued as such till the date of  his appointment.  This

Court also considered the principle applied to the East Punjab High

Court. An advocate of the Lahore High Court was entitled to practice

in the new High Court counted his seniority on the strength of his

standing in the Lahore High Court.   It was held that a person who

continued as advocate at the time of his appointment as  District

Judge fulfilled the requirement of Article 233. Emphasis was laid by

this Court that such a practice was recognised under clause 6 of the

High Court of Punjab Order, 1947. Earlier, the High Court used to

maintain the rolls of advocates. The question which arose for

consideration was whether respondent Nos.2 to 6 fulfilled the

requirements of  having  been  7 years an  advocate or pleader. The

submission made was that practice rendered outside the territory of

India cannot be counted as practice for counting 7 years. This Court

interpreted Article 233 distinguishing it from Article 124 and Article

217 and held that under clause (1), the Government can appoint such

a person who is already in the service of the Union or State. No special

qualifications  were  prescribed  under clause (1) of  Article  233.  The

24                                                                                                                                  Governor can appoint such a person as District Judge. However, as to

a person not already in service, the qualification prescribed in Article

233 is that he should be an advocate or a pleader of 7 years' standing.

This Court answered the question thus:

“11. This is the background against which we have to consider the argument of learned counsel for the appellant. Even if we assume without finally pronouncing on their correctness that learned counsel is right in his first two submissions viz. that the word “advocate” in clause (2) of Art. 233 means an advocate of a court in India and the appointee must be such an advocate at the time of his appointment, no objection on those grounds can be raised to the appointment of three of the respondents who were factually on the roll of Advocates of the Punjab High Court at the time of their appointment; because admittedly they were advocates in a court in India and continued as such advocates till the dates of their appointment. The only question with regard to them is whether they can  count in the  period of seven years their period  of  practice in  or  under the  Lahore  High  Court. The answer to this question is clearly furnished by clause 6(2) of the High Courts (Punjab) Order, 1947, read with S. 8(3) of the Bar Councils Act, 1926. That clause lays down that the right of audience in the High Court of East Punjab shall be regulated in accordance with the principle in force in the Lahore High Court immediately before the appointed day. The relevant rule in the Lahore High Court Rules laid down that Advocates who are Barristers shall take precedence  inter se according to the date of call to the Bar; Advocates who are not Barristers, according to the dates when they became entitled to practice in a High Court. The same principle applied to the East Punjab High Court, and an advocate of the Lahore High Court who was recognised as an advocate entitled to practise in the new High Court counted his seniority on the strength of his standing in the Lahore High Court. He did not lose that seniority, which was preserved by the Bar Councils Act, 1926, and we see no reasons why for the purpose of cl. (2) of Art. 233 such an advocate should not have the same standing as he has in the High Court where he is practising.  

12.  Learned counsel for the appellant  has also  drawn  our attention to Explanation I to cl. (3) of Art. 124 of the Constitution relating to the qualifications for appointment as a Judge of the Supreme Court and to the explanation to cl. (2) of Art.  217  relating  to the qualifications  for  appointment  as a Judge  of  a  High  Court, and has submitted that  where the Constitution makers thought it necessary they specifically provided for counting the period in a High Court which was formerly in India. Articles 124 and 217 are differently worded

25                                                                                                                                  

and refer to an additional qualification of citizenship which is not a requirement of Art. 233, and we do not think that cl. (2) of  Art. 233 can be interpreted in the light of explanations added to Arts. 124 and 217. Article 233 is a self  contained provision regarding 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.  The clause does not say how that standing must be reckoned and if an Advocate of the Punjab High Court is entitled to count the period of his practice in the Lahore High Court for determining his standing at the Bar, we see nothing in Art. 233 which must lead to the exclusion of that period for determining his eligibility for appointment as district judge.

13. What will be the result if the interpretation canvassed for on behalf of the appellant is accepted? Then, for seven years beginning from August 15, 1947, no member of the Bar of the Punjab High Court would be eligible for appointment as district judge ­­ a result which has only to be stated to demonstrate the weakness of the argument. We have proceeded so far on the first two submissions of learned counsel for the appellant,  and on  that  basis  dealt  with  his third submission. It is perhaps necessary to add that we must not be understood to have decided that the expression  ‘has been’ must always mean what learned counsel for the appellant says it means according to the strict rules of grammar. It may be seriously questioned if an organic Constitution must be so narrowly interpreted, and the learned Additional Solicitor­General has drawn 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 Allahabad High Court in Mubarak Mazdoor  v.  K.K. Banerji,  AIR 1958 All 323, where a different meaning was given to a similar expression occurring in the proviso to sub­sec. (3) of S. 86 of the Representation of the People Act, 1951. We consider it unnecessary to pursue this matter further because the respondents we are now considering continued to be advocates of the Punjab High Court when they were appointed as district judges and they had a standing of more than seven years when so appointed. They were clearly eligible for appointment under cl. 2 of Art. 233 of the Constitution.

14. We now turn to the other two respondents (Harbans Singh and P.R. Sawhney) whose names were not    factually    on the roll of Advocates at the time they were appointed as district judges. What is their position? We consider that they also fulfilled the requirements of Art. 233 of the Constitution. Harbans Singh

26                                                                                                                                  

was in service of the State at the time of his appointment, and Mr Viswanantha Sastri appearing for him has submitted that cl. (2) of Art. 233 did not apply. We consider that even if we proceed on the footing that both these persons were recruited from the Bar and their appointment has to be tested by the requirements of cl.(2), we must hold that they fulfilled those requirements.  They were Advocates enrolled in the Lahore High  Court; this is  not disputed. Under  Cl. 6 of the  High Courts (Punjab) Order, 1947, they were recognised as Advocates entitled to practise in the Punjab High Court till the Bar Councils Act, 1926, came into force.  Under S.8 (2)(   a  ) of that  Act it  was  the duty of the High Court to  prepare and maintain a roll of advocates in which their names should have been entered on the day on which S. 8 came into force, that is, on  September  28, 1948. The  proviso to sub­sec. (2) of  S.8 required them to deposit  a fee of Rs 10 payable to the Bar Council. Obviously such payment could hardly be made before the Bar Council was constituted. We do not agree with learned counsel for the appellant and the interveners (B.D. Pathak and Om Dutt  Sharma) that the proviso  had the effect  of taking away the right which these respondents had to come automatically on the roll of advocates under S. 8(2)(a) of the Act. We consider that the combined effect of Cl. 6 of the High Courts (Punjab) Order, 1947, and S. 8(2)(a) of the Bar Councils Act, 1926, was this: from August 15, 1947, to September 28,1948, they were recognised as Advocates entitled to practise in  the Punjab High Court  and after  September 28, 1948, they automatically came on the roll of advocates of the Punjab High Court but had to pay a fee of Rs 10 to the Bar Council.  They did not cease to be advocates at any time or stage after August 15, 1947, and they continued to be advocates of the Punjab High Court till they were appointed as District Judges. They also had the necessary standing of seven years to be eligible under Cl.(2) of Art. 233 of the Constitution.”

(emphasis supplied)

21. Much was tried to be made based on the facts of Harbans Singh

and P.R. Sawhney in the decision of  Rameshwar Dayal  (supra).

Harbans Singh and P.R. Sawhney were having the following

qualifications as noted in the judgment:

“5. x x x  (2) Respondent 3 (Harbans Singh, J.)  was also called to the Bar and then enrolled as an Advocate of the Lahore High Court on March 5, 1937. He worked as an Additional District and Sessions Judge, Ferozepore,  from July 2, 1947, to February

27                                                                                                                                  

22, 1948. He then returned to practice at Simla for a short while. On March 15, 1948, he worked as Deputy Custodian, Evacuee Property, till April 17, 1950. On April 18, 1950, he was appointed as District and Sessions Judge and on August 11,  1958,  he  was appointed as an Additional  Judge  of the Punjab High Court.

(5)  Respondent  6 (P.R.  Sawhney)  was  called to the  Bar  on November 17, 1930, and was enrolled as an Advocate of the Lahore High Court on March 10, 1931. After partition he shifted to Delhi and worked for sometime as Legal Adviser to the Custodian, Evacuee Property, Delhi. Then he practised for sometime at Delhi; he then accepted service under the Ministry of Rehabilitation as an Officer on Special Duty and Administrator, Rajpura Township. On March 30, 1949, he became the Chairman, Jullundur Improvement Trust. On May 6, 1949, he got his licence to practise as an Advocate suspended. On April 6, 1957, he was appointed as District and Sessions Judge.”

Two of them were not in judicial service as on the date of their

appointment; they  had  practised  earlier for the requisite  period  as

advocates and later  were  appointed  as  District  &  Sessions Judge.

Harbans Singh was working as Deputy Custodian, Evacuee Property

till  1950, when he was appointed as District  & Sessions Judge.  In

1958, he was appointed as an Additional Judge of the Punjab High

Court. At the relevant time, when the appointments were made,

recruitments were permissible from executive services too. Their

eligibility to be appointed as District & Sessions Judge was tested. The

question which came up for consideration was not whether they could

have been appointed being in service of Custodian of Evacuee Property

or the Improvement Trust. What was held by this Court concerning

interpretation of Article 233 in the abovementioned para 12 of

Rameshwar Dayal  (supra),  by  a Constitution Bench of  Court,  goes

28                                                                                                                                  squarely  against  the submissions raised on behalf  of  the  in­service

candidates.     

     22. In  Satya Narain Singh  (supra),  a  similar  question arose.  The

members of Uttar Pradesh Judicial Service applied for appointment by

way of direct recruitment to the Uttar Pradesh Higher Judicial Service

claiming that they had completed 7 years of practice at the Bar before

their appointment to the Uttar Pradesh Judicial Service.   Therefore,

they were eligible to be appointed by direct recruitment to the Higher

Judicial Service, i.e., to the post of District Judge.   It was submitted

that it would be extremely anomalous to interpret Article 233 in a way

to render judicial officers eligible for appointment as a District Judge

by direct recruitment.   This Court rejected the submission and

observed thus:

"3. …Two points straightway project themselves when the two clauses  of  Article  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 makes 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

29                                                                                                                                  

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. Obviously the same ship cannot sail both the streams simultaneously."

(emphasis supplied)

This Court has relied upon  Rameshwar Dayal  (supra) and

Chandra Mohan (supra) to hold:

“5. 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 Article 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 Article 14 and Article 16 of the Constitution. 6.  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.”

(emphasis supplied)

The cases of  Harbans Singh and Sawhney were considered and

explained in the aforesaid decision.   This Court relied upon the

decision of  Rameshwar Dayal (supra) to hold that as to a person not

already in­service, a qualification is that he should be an advocate or

pleader of seven years' standing.  The same clinches the issue against

in­service candidates and negates their claim therefor.

23. In  Deepak Aggarwal  (supra) a three­Judge Bench of this Court

considered the provisions of  Article  233(2)  and held that service  in

Article 233 to mean judicial service and there is dichotomy of sources

30                                                                                                                                  of recruitment, namely, (i) from judicial service; and (ii) from the

advocate/pleader or in other words from the Bar.  The meaning of the

term advocate/pleader too has been considered by this Court.   The

expression “advocate” or “pleader” refers to the members of the Bar

practicing law.  Relying  upon  Sushma Suri v.  Govt. (NCT of  Delhi),

(1999) 1 SCC 330, this Court further observed that members of the

Bar meant classes of persons who were practicing in a court of law as

pleaders or advocates.  This Court further held that in Article 233(2),

"if  he  has been  for  not less  than seven years," the present  perfect

continuous tense is used for a position which began at some time in

the past and is continuing.   Therefore, one of the essential

requirements is that such  a  person  must  with requisite  period  be

continuing as an advocate on the date of application.  This Court has

observed:

“70. A few decisions rendered by some of the High Courts on the point may also be noticed here.  In  Sudhakar Govindrao Deshpande v.  State of Maharashtra,  1986 Lab IC 710 (Bom) the issue that fell  for consideration before the Bombay High Court was whether the petitioner therein who was serving as Deputy Registrar  at the Nagpur Bench of the Bombay High Court, was eligible for appointment to the post of the District Judge. The advertisement that was issued by the High Court inviting applications for five posts of District Judges, inter alia, stated that, “candidate must ordinarily be an advocate or pleader who has practised in the High Court, Bombay or court subordinate thereto for  not less than seven years  on 1­10­ 1980”. The Single Judge of the Bombay High Court considered Articles 233, 234 and 309 of the Constitution, relevant recruitment rules and noted the  judgments of this Court  in Chandra Mohan v.  State  of  U.P.,  AIR 1966 SC 1987,  Satya Narain Singh v. High Court of Judicature of Allahabad, (1985) 1 SCC 225 and Rameshwar Dayal v. State of Punjab, AIR 1961 SC 816.  It was observed as follows: (Sudhakar case, Lab IC p. 715, para 16)

31                                                                                                                                  

“16. … the phrase ‘has been an advocate or a pleader’ must be interpreted as a person who has been immediately prior to  his  appointment  a  member  of the  Bar, that is to  say either an advocate or a pleader. In fact, in the above judgment, the Supreme Court has repeatedly referred to the second group of persons eligible for appointment under Article 233(2) as ‘members of the Bar’. Article 233(2) therefore, when it refers to a person who has been for not less  than seven years  an advocate  or pleader  refers  to  a member  of the Bar who  is  of  not less than seven years’ standing.”

89. We do not think there is any doubt about the meaning of the expression “advocate or pleader” in Article 233(2)  of the Constitution. This should bear the meaning it had in law preceding the Constitution and as the expression was generally understood. The expression “advocate or pleader” refers to legal practitioner and, thus, it means a person who has a right to act and/or plead in court on behalf of his client. There is no indication in the context to the contrary. It refers to the members of the Bar practising law. In other words, the expression “advocate  or  pleader” in  Article  233(2)  has  been used for a member of the Bar who conducts cases in court or, in other words acts and/or pleads in court on behalf of his client. In     Sushma Suri v. Govt. (NCT of Delhi)   , (1999) 1 SCC 330, a three­Judge Bench of this Court construed the expression “members of the Bar” to mean class of persons who were actually practising in courts of law as pleaders or advocates. …

102. As regards construction of the expression, “if he has been for not less than seven years an advocate” in Article 233(2) of the Constitution, we think Mr Prashant Bhushan was right in his submission that this expression means seven years as an advocate immediately preceding the application and not seven years any time in the past. This is clear by use of “has been”. The present perfect  continuous tense  is  used  for  a position which began at sometime in the past and is still continuing. Therefore, one of the essential requirements articulated by the above expression in Article 233(2) is that such person must with requisite period be continuing as an advocate on the date of application.”

(emphasis supplied)

It is  clear from the decision of  Deepak Aggarwal  (supra) that

recruitment from the Bar is only from among practicing advocates and

those continuing as advocates on the date of appointment.   The

submission that the issue of eligibility of in­service candidates did not

32                                                                                                                                  come up for consideration is of no consequence as provisions of Article

233(2) came up for consideration directly before this Court.

24. The decision of  Vijay Kumar Mishra and Anr.  v.  High Court of

Judicature at Patna and Ors., (2016) 9 SCC 313, has also been referred

in which judicial officers staked their claim as against the post

reserved  for the members of the Bar  i.e.,  advocates/pleaders.  The

High  Court repelled the challenge; hence appeal  was filed in this

Court.  A two­Judge Bench of this Court observed that a person who

is not in service shall be eligible to be appointed as a District Judge.

After that, the bench distinguished between "selection" and

"appointment." It was observed that Article 233(2) prohibits the

appointment of a person who is already in service of the Union or the

State, but not selection of such a person.   Even if a person, who is

already in service, is selected, still he has an option to be a District

Judge or continue with the existing employment.  The relevant portion

of the observations made is extracted hereunder:

“6.  Article 233(1) stipulates that appointment of District Judges be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. However, Article 233(2) declares that only a person not already in the service of either the Union or of the State shall be eligible to be appointed as District Judge. The said Article is couched in negative language creating a bar for the appointment of certain class of persons described therein. It does not prescribe any qualification. It only prescribes a disqualification.

7.  It is well settled in service law that there is a distinction between selection and appointment. Every person who is successful in the selection process undertaken by the State for

33                                                                                                                                  

the purpose of filling up of certain posts under the State does not acquire any right to be appointed automatically. Textually, Article 233(2) only prohibits the appointment of a person who is already in the service of the Union or the State, but not the selection of such  a  person. The right of such  a  person to participate in the selection process undertaken by the State for appointment to  any  post in  public  service (subject to  other rational prescriptions regarding the eligibility for participating in the selection process such as age, educational qualification, etc.) and be considered is guaranteed under Articles 14 and 16 of the Constitution.

8. The text of Article 233(2) only prohibits the appointment of a person as a District Judge, if such person is already in the service of either the Union or the State. It does not prohibit the consideration of the  candidature  of  a  person who is in the service  of the  Union or the  State.  A  person  who is in the service of either the Union or the State would still  have the option, if selected, to join the service as a District Judge or continue with his existing employment. Compelling a person to resign from his job even for the purpose of assessing his suitability for appointment as a District Judge, in our opinion, is not permitted either by the text of Article 233(2) nor contemplated under the scheme of the Constitution as it would not serve any constitutionally desirable purpose.

11.  It appears from  the reading of the judgment in  Satya Narain Singh v. High Court of Judicature of Allahabad, (1985) 1 SCC 225,  that the case of the petitioners was that their claims for appointment to the post of District Judges be considered under the category of members of the Bar who had completed seven years of practice ignoring the fact that they were already in the Judicial Service. The said fact operates as a bar undoubtedly under Article 233(2) for their  appointment  to the Higher Judicial Service. It is in this context this Court rejected their claim. The question whether at what stage the bar comes into operation was not in issue before the Court nor did this Court go into that question.”

We find ourselves unable to agree with the proposition laid down

in  Vijay Kumar Mishra  (supra). In our opinion, in­service candidates

cannot apply as against the post reserved for the advocates/pleaders

as he has to be in continuous practice in the past and at the time

when  he  has  applied  and  appointed.  Thus, the  decision in  Vijay

34                                                                                                                                  Kumar Mishra  (supra) cannot be said to be laying down the law

correctly.   

25. A person in judicial service is eligible to be appointed as District

Judge, but it is only by way of promotion or by way of merit

promotion, which concept has been evolved in  All India Judges

Association and Ors. v. Union of India and Ors., (2002) 4 SCC 247, in

which recommendations of the Shetty Commission were considered by

this Court as to the method of recruitment to the post of the cadre of

Higher Judicial Service – District Judges and Additional District

Judges.   This Court took note of the fact that at that moment, there

were two sources for recruitment to the Higher Judicial Service,

namely, (i) by promotion; and (ii) by direct recruitment.   In order to

strengthen the lower judiciary and to make them more efficient, the

establishment of Judicial Academies was suggested.   This Court

approved the recommendations of Shetty Commission that the

recruitment to the  Higher  Judicial  Service, i.e., the  District  Judge

cadre from amongst the advocates should be 25  percent and the

process of recruitment should be by a competitive examination

including both written and viva voce tests.   75 percent should be by

way of promotion and 25 percent by direct recruitment.   This Court

further ordered that 50 percent of the total post in the Higher Judicial

Services must be filled by promotion on the basis of principle of merit­

cum­seniority and 25 percent of the posts in the service shall be filled

35                                                                                                                                  by promotion strictly on the basis of merit through the limited

departmental competitive examination for which the qualifying service

as a Civil Judge (Senior Division) should be not less than five years.

The High Courts were directed to  frame rules  in this regard.   This

Court also held that quota in relation to the post is necessary, which

is the basic principle on the basis of which the 40­point roster works,

it was held, seniority should be maintained on the basis of the roster

principle.   The existing seniority had to be protected, but the roster

was to be evolved for the future.  This Court observed thus:

 “27.  Another question  which falls for consideration is the method  of recruitment to the  posts in the cadre of  Higher Judicial Service i.e.  District Judges and Additional District Judges.  At the  present  moment, there are two sources for recruitment to the Higher Judicial Service, namely, by promotion from amongst the members of the Subordinate Judicial  Service  and by direct  recruitment.  The subordinate judiciary is the foundation of the edifice of the judicial system. It is, therefore, imperative, like any other foundation, that it should become as strong as possible. The weight on the judicial system essentially rests on the subordinate judiciary. While  we  have accepted the recommendation of the  Shetty Commission which will result in the increase in the pay scales of the subordinate judiciary, it is at the same time necessary that the  judicial  officers,  hard­working as  they are,  become more efficient. It is imperative that they keep abreast of knowledge of law and the latest pronouncements, and it is for this reason that the Shetty Commission has recommended the establishment of a Judicial Academy, which is very necessary. At the same time, we are of the opinion that there has to be certain minimum standard,  objectively  adjudged, for officers who  are to enter the  Higher Judicial Service as Additional District Judges and District Judges. While we agree with the Shetty Commission that the recruitment to the Higher Judicial Service i.e. the District Judge cadre from amongst the advocates should be 25 per cent and the process of recruitment is to be by a competitive examination, both written and viva voce, we are of the opinion that there should be an objective method of testing the suitability of the subordinate judicial officers for promotion to the Higher Judicial Service. Furthermore, there should also be an incentive amongst the relatively junior and other officers to improve and to compete

36                                                                                                                                  

with each other so as to excel and get quicker promotion. In this way,  we expect  that the calibre of the members of the Higher Judicial Service will further improve. In order to achieve this,  while the ratio  of  75 per cent appointment by promotion and 25 per cent by direct recruitment to the Higher Judicial Service is maintained, we are, however, of the opinion that there should be two methods as far as appointment by promotion is concerned: 50 per cent of the total posts in the Higher  Judicial  Service  must  be filled  by  promotion on  the basis of principle of merit­cum­seniority. For this purpose, the High Courts should devise and evolve a test in order to ascertain and examine the legal knowledge of those candidates and to assess their continued efficiency with adequate knowledge of case­law. The remaining 25 per cent of the posts in the service shall be filled by promotion strictly on the basis of merit through the limited departmental competitive examination for which the qualifying service as a Civil Judge (Senior Division) should be not less than five years. The High Courts will have to frame a rule in this regard.

28. As a result of the aforesaid, to recapitulate, we direct that recruitment to the  Higher  Judicial  Service i.e. the  cadre  of District Judges will be:

(1)(a)  50 per cent by promotion from amongst the Civil Judges (Senior Division) on the basis of principle of merit­ cum­seniority and passing a suitability test; (b)  25 per cent by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years’ qualifying service; and (c)  25 per cent of the posts shall be filled by direct recruitment from amongst the eligible advocates on the basis of the written and viva voce test conducted by respective High Courts. (2) Appropriate rules shall be framed as above by the High Courts as early as possible.

**** 29.  Experience  has shown that there  has  been  a constant discontentment amongst the members of the Higher Judicial Service in regard to their seniority in service. For over three decades a large number of cases have been instituted in order to decide the relative seniority from the officers recruited from the two different sources, namely, promotees and direct recruits. As a result of the decision today, there will, in a way, be three ways of recruitment to the Higher Judicial Service. The quota for promotion which we have prescribed is 50 per cent by following the principle “merit­cum­seniority”,  25 per cent strictly on merit by limited departmental competitive examination and 25 per cent by direct recruitment. Experience has also shown that the least amount of litigation in the country, where quota system in recruitment exists, insofar as seniority is concerned, is where a roster system is followed. For

37                                                                                                                                  

example, there is, as per the rules of the Central Government, a 40­point roster which has been prescribed which deals with the quotas for Scheduled Castes and Scheduled Tribes. Hardly, if ever, there has been a litigation amongst the members of the service after their recruitment as per the quotas, the seniority is fixed by the roster points and irrespective of the fact as to when a person is recruited. When roster system is followed, there is no question of any dispute arising. The 40­point roster has been considered and approved by this Court in  R.K. Sabharwal  v.  State of Punjab, (1995) 2 SCC 745. One of the methods of avoiding any litigation and bringing about certainty in this regard is by specifying quotas in relation to posts and not in relation to the vacancies. This is the basic principle on the basis of which the 40­point roster works. We direct the High Courts to suitably amend and promulgate seniority rules on the basis of the roster principle as approved by this Court in R.K. Sabharwal case as early as possible. We hope that as a result thereof there would be no further dispute in the fixation of seniority. It is obvious that this system can only apply prospectively except where under the relevant rules seniority is to be determined on the basis of quota and rotational system. The existing relative seniority of the members of the Higher Judicial Service has to be protected but the roster has to be evolved for the future.  Appropriate rules and methods will  be adopted by the High Courts and approved by the States, wherever necessary by 31­3­2003.”

(emphasis supplied)

It is apparent from the aforesaid decision that 25 percent of the

posts in the cadre of District Judge have to be filled by direct

recruitment amongst the advocates based on a competitive

examination, both written and viva voce.  The decision is in tune with

the various decisions of this  Court such as Rameshwar  Dayal,

Chandra Mohan,  Satya Narain Singh and Deepak Aggarwal  (supra).

The direction issued by this Court of 25 percent of the post to be filled

by limited departmental competitive examination has been reduced to

10 percent by this Court in  All India Judges Association and Anr. v.

Union of India (II), (2010) 15 SCC 170.

38                                                                                                                                  26. Reliance has been placed on  O.P.  Garg v.  State  of  U.P.,  1991

Supp. (2) SCC 51, wherein question was of fixation of seniority.  This

Court has observed that there should be equal opportunity to enter

the service for all the sources of recruitment.  If recruitment rules give

unwarranted preference to one source, the seniority rule is bound to

become unworkable.   Therefore, there should be equality of

opportunity to all the sources.

27. In Punjab and Haryana High Court v. State of Punjab, 2018 SCC

OnLine  SC  1728 [Civil Appeal  Nos.5518­5523 of 2017  decided on

3.10.2018] the question  which arose  was  with respect to inter se

seniority dispute between three streams of Punjab Superior Judicial

Service,  i.e., 50 percent by promotion based on merit­cum­seniority,

25 percent by limited departmental competitive examination and

remaining 25 percent to be filled by direct recruitment from amongst

eligible advocates.   The facts indicate that the  All India Judges

Association  (2002) decision had been  implemented,  and seniority  is

being maintained as directed.

28. It is apparent from the decision of  All India Judges Association

that in  order to  prove  the merit  of in­service  candidates,  a  limited

departmental competitive examination has also been provided, so that

they can take march to hold the post of District Judges on the basis of

their merit.  They are not deprived of any opportunity in their pursuit

once they have joined the judicial stream, they are bound to follow the

39                                                                                                                                  provisions.  It was open to them not to join the subordinate services.

They could have staked a claim by continuing to be an advocate to the

Higher Judicial Service as against the post of District Judge.

However, once they chose to be in service, if  they had seven years'

experience at Bar before joining the judicial service, they are

disentitled to lay a claim to the 25% quota exclusively earmarked for

Advocates; having regard to the dichotomy of different streams and

separate quota for recruitment.  Opportunities are provided not only to

in­service candidates but also to practicing candidates by the

Constitutional Scheme to excel and to achieve what they aspire i.e.

appointment as District Judge.   However, when someone joins a

particular stream, i.e. a 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 two­fold  channel, either in the  50% seniority/merit

quota, by promotion, or the quota for limited competitive examination.

29. 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 in­service candidates of higher judiciary in the High

Court 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.

Thus, not only in the higher judiciary, in­service candidates of

40                                                                                                                                  subordinate judiciary are given the opportunity as against 75 percent

to be appointed by way of promotion as provided in All India Judges

Association case, and the members of the Bar are given the

opportunity as against 25 percent of the post having 7 years’ standing

at Bar.

30. The makers of the Constitution visualised and the law

administered in the country for the last seven decades clearly reveals

that the aforesaid modes of recruitment and two separate sources, one

from in­service and other from the Bar, are recognised.  We do not find

even a  single  decision supporting the cause espoused on behalf  of

candidates, who are in judicial service, to stake their claim as against

the posts reserved for advocates/pleaders.  In all the cases right from

beginning from  Rameshwar Dayal  (supra) to date,  a dichotomy has

been maintained, and we find absolutely no room to entertain

submission of discrimination based on Articles 14 and 16.

31. We are not impressed by the submission that when this Court

has interpreted the meaning of service in Article 233(2) to mean

judicial service, judicial officers are eligible as against the posts

reserved  for the  advocates/pleaders.  Article  233(2)  starts  with the

negative "not," which disentitles the claim of judicial officers against

the post reserved for the practicing advocates/pleaders.  They can be

promoted to that post as per the rules; this Court has further  laid

down a wider horizon to in­service candidates in the All India Judges

41                                                                                                                                  Association  as against the 75 percent of the post by including merit

promotion.   The argument that merit should prevail and they should

be given due opportunity under the rules to prove their merit and to

excel, in  our  opinion, cannot  prevail.  Such  judicial officer  cannot

claim merit in violation of the provisions of rules framed under Article

234 of the Constitution.  The two classes are different.  In terms of the

prevalent rules in­service candidates lack eligibility.   They cannot

contend that they are discriminated against and their merit is ignored

and overlooked.   

32. Consistently, this Court in its previous judgments has taken the

view which we now take.  We  find  absolutely  no  reason to take  a

different view, though it was urged that mistakes committed earlier

should not continue.  We find the argument to be devoid of substance

and based upon misapprehensions.  We have found that the aforesaid

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

mentioned above on the principle of stare decisis and rules framed by

various High Courts, we find ourselves unable to accept the

submission raised on behalf of in­service candidates.  The decisions in

Satya Narain Singh  (supra),  Deepak Aggarwal  (supra)  and  All India

Judges Association case  (supra) also cannot be said to be contrary to

42                                                                                                                                  the provisions of Article 233.  We unhesitatingly reject the submission

to the contrary.

33. It was submitted that promotion is no substitute for direct

recruitment, as against the post reserved for direct recruitment,  an

incumbent can apply throughout India, whereas an in­service

candidate can be promoted within the State, and there is no definite

period for coming into the zone of consideration for promotion in

Higher Judicial Service.  Thus, it was urged that direct recruitment is

altogether different from promotion and having practiced for 7 years,

they have basic eligibility to stake their claim for the post reserved for

advocates/pleaders, and they have additional experience of acting as a

judge also.   We find no room to accept the submissions.   Once the

Constitution envisages separate sources of recruitment, no case can

be made out of deprivation of the opportunity.  Once service is joined,

one  has to go by the service rules, and it  was open to such  an

incumbent to practice and stake claim in various States while

remaining in  practice.   It is  a  matter  of two  different streams for

recruitment which is permissible, such an argument cannot be

accepted.

34. In  P. Ramakrishnam Raju v. Union of India and Ors.,  (2014) 12

SCC 1, this Court has observed that experience and knowledge gained

by a successful lawyer at the Bar can never be considered to be less

important from any point of view vis­à­vis the experience gained by a

43                                                                                                                                  judicial officer.  If service of a judicial officer is counted for fixation of

pension, there is no valid reason as to why the experience at the Bar

cannot be treated as equivalent for the same purpose.  In Government

of NCT of Delhi and Ors. v. All India Young Lawyers’ Association and

Anr., (2009) 14 SCC 49, this Court has directed that a certain number

of years as an advocate to be added to the judicial service for pension.

Thus, in our opinion, experience as an advocate is also important, and

they cannot be deprived of their quota, which is kept at 25 percent

only in the Higher Judicial Service.

35. It  was submitted that  ultimately the  appointment  of the  Bar

member is also made under Article 233(1).  In The State of Assam and

Anr. v. Kuseswar  Saikia  and Ors.,  AIR  1970  SC  1616, this  Court

observed that both appointment and promotion are included in Article

233(1).  Following observations have been made:

“5.  The reading of the article by the High Court is, with respect, contrary to the grammar and punctuation of the article. The learned Chief Justice seems to think that the expression “promotion of”  governs “District  Judges”  ignoring the comma that follows the word “of”. The article, if suitably expanded, reads as under:

“Appointments of persons to be, and the posting and promotion of (persons to be), District Judges etc.”

It means that appointment as well as promotion of  persons to be District Judges is a matter for the Governor in consultation with the High Court and the expression "District Judge" includes an additional District Judge and an Additional Sessions Judge. It must be remembered that District Judges may be directly appointed or may be promoted from the subordinate ranks of the judiciary. The article is intended to take care of both. It concerns initial appointment and initial promotion of persons to be either District Judges or any of the categories included in it. …."

44                                                                                                                                  

The decision is of no avail as the question in the present case is

different.   Though the appointment is made under Article 233(1), but

the source and the channel for judicial officers is the promotion, and

for the members of the Bar is by direct recruitment.

36. The 116th  Report of Law Commission on All India Judicial

Services  published in  November  1986  has  been referred to,  which

observed that chances of promotion of the subordinate ranks will be

proportionately reduced to the extent direct recruitment is made.  The

Law Commission was not considering the provisions of Article 233 but

had made certain observations, and there is no formation of the All

India Judicial Service so far what would be the provisions when it is

constituted,  will have to  be considered  when they are formulated.

Thus, no benefit can be derived on the basis of certain observations

and suggestions made by the Law Commission as to what may happen

in case All India Judicial Service is formed.  

37. Certain recommendations of the Shetty Commission have been

referred to, but after their consideration in the  All India Judges’

Association case, there is no scope for considering the provisions of the

Constitution to provide eligibility for  in­service candidates for direct

recruitment for the post of District Judge. The existing provisions are

45                                                                                                                                  not restrictive but provide wider choice to improve and strengthen the

judicial system and in tune with Articles 14 and 16.

38. Reference has been made to the decision  in  All India Judges’

Association v. Union of  India and Ors.,  (1992) 1 SCC 119,  in which

following observations have been made:

“9.  We shall first deal with the plea for setting up of an All India  Judicial  Service.  The  Law Commission  of India in its Fourteenth Report in the year 1958 said:

“If we are to improve the personnel of the subordinate judiciary, we must first take measures to extend or widen our field  of  selection  so that  we  can  draw  from  it really capable persons. A radical measure suggested to us was to recruit the judicial service entirely by a competitive test or examination. It was suggested that the higher judiciary could be drawn from such competitive tests at the all­India level  and the  lower  judiciary  can be  recruited by similar tests held at State level. Those eligible for these tests would be graduates who have taken a law degree and the requirement  of  practice  at the  bar  should  be  done  away with.

Such a scheme, it was urged, would result in bringing into the subordinate judiciary capable young men who now prefer to obtain immediate remunerative employment in the executive branch of government and in private commercial firms. The scheme, it was pointed out, would bring to the higher subordinate judiciary the best talent available in the country as a whole, whereas the lower subordinate judiciary would be drawn from the best talent available in the State.  ….”  

A further recommendation was made for the formation of the All

India Judicial Service.  The suggestion was made that practice at Bar

for induction at the lower level should be done away with.  Be that as

it may.   The prescription of the practice period of 3 years, has been

changed time to time, but the facts remain that when it comes to the

eligibility and recruitment from the Bar to the post of District Judge,

practicing advocates from the Bar can be inducted by way of direct

46                                                                                                                                  recruitment as against the quota fixed for them.   The question

involved in the matter is not whether the practice is necessary to join

the subordinate judiciary.

39. In  All India Judges' Association and Ors. v. Union of India and

Ors.,  (1998) 8 SCC 771, this Court  has considered the question of

permitting the Legal Assistants working in different institutions other

than the courts for the purpose of appointments in the judiciary.  This

Court observed that Legal Assistants do not get experience and

exposure, which is important for manning judicial posts.   The

observations made are extracted hereunder:

“1. The question of permitting the Legal Assistants working in different institutions other than the courts for the purpose of appointments on the ground that they should be treated as having experience at the Bar cannot be entertained. The Legal Assistants working in different institutions and bodies do not get the experience and exposure which  is  important  for  the purpose of manning judicial posts, and it is not possible to lay down guidelines on the basis of a few appearances but what is important is not mere appearance but actual intimate knowledge and association with the system itself. We, therefore, reject the applications.”

40. The decision in A. Pandurangam Rao v. State of Andhra Pradesh

and Ors., AIR 1975 SC 1922, has been referred to, in which question

arose as to the appointment of District Judges by direct recruitment

from the Bar.  The Court held that a candidate for direct recruitment

from the Bar does not become eligible for the appointment of District

Judges in any State without the recommendation of the High Court.

The final authority is the Government in the matter of appointment.

47                                                                                                                                  There is no dispute with the aforesaid proposition, the decision also

indicates that direct recruitment is from  the  Bar.  Obviously, the

appointment has to be made by the Government.  The decision rather

than supporting defeats the cause espoused on behalf  of in­service

candidates.

41. The decision in Chandra Mohan v. State of U.P. and Ors. (II), AIR

1976 SC 1482, has also been referred to in which question arose of

seniority only.  This Court has taken note that Rules 8, 13, 14, 15, 17,

and 19 of the U.P. Higher Judicial Service Rules (1953) were held to be

unconstitutional as offending Article 233.   The question arose of

determining seniority in accordance with Rule 20.  The decision is not

an authority on the question of interpretation of Article 233 but was

rather a fallout of Chandra Mohan­I (supra).

42. It was also submitted that practice as an advocate and service as

a judicial officer for 10 years is to be treated at par as per explanation

added to Articles 124 and 217 of the Constitution of India.   In

Rameshwar  Dayal  (supra), this  question has  been  considered,  and

this Court held that Article 233(2) could not be interpreted in view of

the  explanations  added  to  Articles  124 and 217.   In  Satya  Narain

Singh  (supra) the aforesaid decision has been considered, and

following observations have been made:

“3. …Again dealing with the cases of Harbans Singh and Sawhney it was observed:

48                                                                                                                                  

“We consider that  even  if  we proceed on the footing that both these 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, as distinguished from Judicial Service, that the requirements of Clause (2) had to be fulfilled. We may also add here earlier the Court also expressed the view:

“… we do not think that Clause (2) of Article 233 can be interpreted  in  the  light  of  Explanations added to  Articles 124 and 217”.”

Reliance placed on  Prof. Chandra Prakash Aggarwal v.

Chaturbhuj Das Parikh and Ors.,  (1970) 1 SCC 182, dealing with the

interpretation of Article 217, is of no avail.

43. The argument has been raised with respect to the violation of

basic human rights.   The findings of the Advisory Panel on Judicial

Diversity in the U.K. in 2010 have been referred to as under:

“22. Equal opportunities. All properly qualified people should have an equal opportunity of applying and of being selected for judicial office. Well­qualified candidates for judicial office should be selected on their merits and should not be discriminated against, either directly or indirectly.

23. Inherent in the concept of human equality is the principle that talent is randomly and widely distributed in society, and not concentrated in particular racial or other groups. It therefore follows that the more widely one searches for talent, the more likely it is that the best candidates will be identified.

“You should not be looking for unusual talent, but looking for talent in unusual places”.

24. The current under­representation of certain well­ qualified groups within the judiciary suggests that factors other than pure talent may be  influencing either people’s willingness to apply or the selection process, or both.”

We find that there is no violation of equal opportunity.  There is

a wide search for talent for inducting in the judicial service as well as

49                                                                                                                                  in direct recruitment from Bar, and the best candidates are identified

and recruited.   Persons from unusual places are also given the

opportunity to stake their claim in pursuit of their choice.  In State of

Bihar and Ors. v. Bal Mukund Sah and Ors.,  (2000) 4 SCC 640, this

Court has observed that onerous duty is cast on the High Court under

the Constitutional Scheme.  It has been given a prime and paramount

position in the matter with the necessity of choosing the best available

talent for manning the subordinate judiciary.  Thus, we find that there

is no violation of any principle of the Universal Declaration of Human

Rights and the  International  Covenant on Civil  and Political  Rights

and International Covenant on Economic, Social and Cultural Rights.   

44. Article 2 of the Universal Declaration of Human Rights has also

been relied upon, which provides thus:

“Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

The aim of our Constitution is also the same, and there is no

violation of any of human rights.   The submission is far­fetched.   In

service jurisprudence, it is always permissible to provide different

sources of recruitment and quotas along with a qualification.   Equal

opportunity is  given,  and seniority  and competence  are  criteria for

promotion, and in merit promotion, seniority is not to be considered.  

50                                                                                                                                  45. In view of the aforesaid discussion, we are of the opinion that for

direct recruitment as District Judge as against the quota fixed for the

advocates/pleaders, incumbent has to be practicing advocate and

must be in practice as on the cut­off date and at the time of

appointment he must not be in judicial service or other services of the

Union or  State.  For constituting experience of 7 years of practice as

advocate, experience obtained in judicial service cannot be

equated/combined and advocate/pleader should be in practice in the

immediate past for 7 years and must be in practice while applying on

the cut­off date fixed under the rules and should be in practice as an

advocate  on  the date  of  appointment.  The purpose  is recruitment

from bar of a practicing advocate having minimum 7 years’ experience.

46. In view of the aforesaid interpretation of Article 233, we find 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.   

47. We answer the reference as under :­

(i) The members in the judicial service of the State can be

appointed as District Judges by way of promotion or limited

competitive examination.

51                                                                                                                                  (ii) 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.

(iii) Under Article 232(2), an Advocate or a pleader with 7 years of

practice can be appointed as District Judge by way of direct

recruitment  in case he  is  not  already  in  the  judicial  service  of the

Union or a State.

(iv) For the purpose of Article 233(2), an Advocate has to be

continuing in practice for not less than 7 years as on the cut­off date

and at the time of appointment as District Judge. Members of judicial

service having 7 years’ experience of practice before they have joined

the service or having combined experience of 7 years as lawyer and

member of judiciary, are not eligible to apply for direct recruitment as

a District Judge.

(v)   The rules framed by the High Court prohibiting judicial service

officers from staking claim to the post of District Judge against the

posts reserved for Advocates by way of direct recruitment, cannot be

said to be ultra vires and are in conformity with Articles 14, 16 and

233 of the Constitution of India.

(vi) The decision in Vijay Kumar Mishra (supra) providing eligibility, of

judicial officer to compete as against the post of District Judge by way

52                                                                                                                                  of direct recruitment, cannot be said to be laying down the law

correctly. The same is hereby overruled.

48. In the case of Dheeraj Mor and others cases, time to time interim

orders have been passed by this Court, and incumbents in judicial

service were permitted to appear in the examination.  Though later on,

this Court vacated the said interim orders, by that time certain

appointments had been made in some of the States and in some of the

States results have been withheld by the High Court owing to

complication which has arisen due to participation of the ineligible in­

service candidates as against the post reserved for the practising

advocates.  In the cases where such in­service incumbents have been

appointed by way of direct recruitment from bar as we find no merit in

the petitions and due to dismissal of  the writ petitions filed by the

judicial  officers,  as sequel no fruits can be ripened on the basis of

selection without eligibility, they cannot continue as District Judges.

They have to be reverted to their original post.   In case their right in

channel for  promotion had already been ripened,  and their juniors

have been promoted, the High Court has to consider their promotion

in accordance with prevailing rules. However, they cannot claim any

right  on the basis  of  such an appointment obtained under  interim

order, which was subject to the outcome of the writ petition and they

have to be reverted.

53                                                                                                                                  49. The civil appeals, writ petitions, Transfer Petition and contempt

petition are, accordingly, disposed of.  No order as to costs.   

……………………………….J.   (Arun Mishra)

……………………………….J.       (Vineet Saran)

New Delhi;                       February 19, 2020.

1

REPORTABLE  IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE/ORIGINAL/INHERENT JURISDICTION

CIVIL APPEAL NO.  1698 OF 2020

(ARISING OUT OF S.L.P. (C)  No. 14156 OF 2015 )

DHEERAJ MOR ...APPELLANT(S)

VERSUS

THE HON’BLE HIGH COURT OF DELHI   ...RESPONDENT(S)

WITH CIVIL APPEAL NO.  1699 OF 2020

(ARISING OUT OF  S.L.P (C) NO. 14676/2015)

CIVIL APPEAL NO. 1700 OF 2020 (ARISING OUT OF  S.L.P (C) NO. 24219/2015)

CIVIL APPEAL NO. 1701 OF 2020 (ARISING OUT OF  S.L.P (C) NO. 30556/2015)

(W.P. (C) NO. 77/2016, W.P. (C) NO. 130/2016, W.P. (C)  NO. 405/2016, W.P. (C) NO. 414/2016)

CIVIL APPEAL NO.  1702 OF 2020 (ARISING OUT OF  S.L.P (C) NO. 15764/2016)

W.P. (C) NO. 423/2016

CIVIL APPEAL NO. 1707 OF 2020 [@ SPECIAL LEAVE PETITION (C) NO. 4781 OF 2020] (ARISING OUT OF  S.L.P (C) NO.....CC NO. 15018/2016)

CIVIL APPEAL NO.  1703 OF 2020  (ARISING OUT OF  S.L.P (C) NO. 23823/2016)

CIVIL APPEAL NO. 1704 OF 2020  (ARISING OUT OF  S.L.P (C) NO. 24506/2016)

CIVIL APPEAL NO.  1706 OF 2020 [@ SPECIAL LEAVE PETITION (C) NO. 4778 OF 2020]

(ARISING OUT OF  S.L.P (C) NO. ..... CC NO. 15304/2016)

2

(W.P. (C) NO. 600/2016, W.P. (C) NO. 598/2016, W.P. (C) NO. 601/2016, W.P. (C) NO.  602/2016,  W.P.  (C)  NO.  733/2016,  W.P.  (C)  NO.  189/2017,  W.P (C)  NO. 222/2017, W.P. (C) NO. 316/2017, W.P. (C) NO. 334/2017, W.P. (C) NO. 371/2017, W.P. (C) NO. 96/2018, W.P. (C) NO. 102/2018, W.P. (C) NO. 103/2018)

T.P. (C) NO. 272/2018

(W.P. (C) NO. 108/2018, W.P. (C) NO. 110/2018, W.P. (C) NO. 106/2018, W.P. (C) NO.  146/2018,  W.P.  (C)  NO.  123/2018,W.P.  (C)  NO.  124/2018,  W.P.  (C)  NO. 138/2018, W.P. (C) NO. 155/2018, W.P. (C) NO. 145/2018, W.P. (C) NO. 158/2018, W.P. (C) NO. 174/2018)

CIVIL APPEAL NO.  1705 OF 2020 (ARISING OUT OF  S.L.P (C) NO. 8480/2018)

(W.P. (C) NO. 291/2018, W.P. (C) NO. 287/2018, W.P. (C) NO. 344/2018, W.P. (C) NO.  352/2018,  W.P.  (C)  NO.  387/2018,  W.P.  (C)  NO.  392/2018,  W.P.  (C)  NO. 396/2018, W.P. (C) NO. 530/2018, W.P. (C) NO. 519/2018, W.P. (C) NO. 535/2018, W.P. (C) NO. 581/2018, W.P. (C) NO. 578/2018, W.P. (C) NO. 612/2018, W.P. (C) NO.  629/2018,  W.P.  (C)  NO.  596/2018,  W.P.  (C)  NO.  616/2018,  W.P.  (C)  NO. 632/2018, W.P. (C) NO. 608/2018, W.P. (C) NO. 628/2018, W.P. (C) NO. 617/2018, W.P. (C) NO. 624/2018, W.P. (C) NO. 631/2018, W.P. (C) NO. 635/2018, W.P. (C) NO.  636/2018,  W.P.  (C)  NO.  641/2018,  W.P.  (C)  NO.  642/2018,  W.P.  (C)  NO. 639/2018, W.P. (C) NO. 640/2018, W.P. (C) NO. 650/2018, W.P. (C) NO. 644/2018, W.P. (C) NO. 658/2018, W.P. (C) NO. 659/2018, W.P. (C) NO. 680/2018, W.P. (C) NO.  671/2018,  W.P.  (C)  NO.  677/2018,  W.P.  (C)  NO.  681/2018,  W.P.  (C)  NO. 686/2018, W.P. (C) NO. 703/2018, W.P. (C) NO. 696/2018, W.P. (C) NO. 717/2018, W.P. (C) NO. 728/2018, W.P. (C) NO. 726/2018, W.P. (C) NO. 727/2018, W.P. (C) NO. 1272/2018,  W.P. (C) NO. 1302/2018,  W.P. (C) NO. 656/2018,  W.P.  (C) NO. 744/2019, W.P. (C) NO. 999/2019, W.P. (C) NO. 1054/2019, W.P. (C) NO. 1053/2019, W.P. (C) NO. 1080/2019, W.P. (C) NO. 1073/2019, W.P. (C) NO. 1089/2019, W.P. (C) NO. 1086/2019, W.P. (C) NO. 1150/2019)

CONMT. PET. (C) NO. 1023/2019 IN W.P. (C) NO. 414/2016   

W.P. (C) NO. 1266/2019

3

JUDGMENT

S. RAVINDRA BHAT, J.

1. I have gone through the draft judgment proposed by the Arun Mishra, J. I agree

with his analysis; however, I have given additional reasoning as well in respect of the

issue involved. Therefore, I am supplementing with my separate opinion.  

2. This judgment answers a reference made to the present three judge bench. The

referral order1 noticed several previous decisions of this court (in Rameshwar Dayal v.

The State of Punjab & Ors. 1961 (2) SCR 874; Chandra Mohan v. The State of Uttar

Pradesh and Ors. (1967) 1 SCR 77; Satya Naraian Singh v High Court of Judicature

1985 (2) SCR 112; Deepak Aggarwal v Keshav Kaushik 2013 (5) SCC 277 and felt that

the observations in a judgment, Vijay Kumar Mishra & Anr v. High Court of Judicature

at Patna & Others (2016) 9 SCC 313, necessitated a re-consideration on the issue as to

the eligibility of judicial officers, of any State, to apply for selection and appointment to

the quota earmarked to be filled by Advocates with seven years’ practice.  

3. The controversy in these petitions is whether officers in the judicial services of

the States (holding posts below that of District Judges) can compete, with members of

the  Bar (with  seven or  more  years’ practice),  for  direct  recruitment,  to  the  post  of

District Judge.  

4. All petitioners hold posts in the judicial services [and in one group, non-judicial

service]  of  various  States.  Broadly,  they  fall  in  three  categories:  those  selected  to

judicial service without any, or with less than seven years’ experience at the Bar; those

who had seven years’ experience at the Bar, before appointment to the judicial service;

and those with seven years or more experience at the Bar,  but are working in non-

judicial posts. Those with seven years’ experience, prior to their appointment falling in

the second and third categories mentioned above, argue that the Constitution does not

preclude them from participating in the process of recruitment for District Judges, in the

25% Advocates’ quota earmarked for that purpose. These set of petitioners strongly rely

on the  decision reported as  Rameshwar Dayal  (supra),  especially the  ruling of this

1 Order dated 23-01-2018 in SLP (C) 14156/2015, Dheeraj More v High Court of Delhi

4

Court (in answer to the alternative argument that two candidates were ineligible, as they

were serving in the Government), and Mahesh Chandra Gupta v.  Union of India and

Ors.  (2009)  8 SCC 273.  Reliance is  also placed on  Chandra Mohan  (supra).  It  is

submitted  that  in  Chandra  Mohan (supra),  this  Court  categorically  held  that  the

disqualification attached to persons in the service of the Union or a State [under Article

233(1)], expressly excludes those in the employment of the State, holding executive

posts and discharging purely executive function, but does not prevent those in judicial

service. It was pointed out that the rule considered in Chandra Mohan (supra) – clearly

entitled judicial officers (along with advocates) with seven years’ experience at the Bar,

to compete in the recruitment process.  

5. Counsel  for  the  petitioners  in  the  second category (i.e.  those  with  less  than

seven years’ experience at the Bar, and who have been working as judicial officers)

submit  that  neither  Article  233(1)  nor  Article  233(2)  bar  the  participation  of  such

candidates (as long as they have an overall combined experience of seven years – at the

Bar and in judicial service) in the recruitment process along with members of the Bar,

for appointment to the cadre of District Judges.  

6. The argument of some of the petitioners is that Articles 233 (1) and 233 (2)

operate in two different fields. Article 233 (1), the argument goes, confers power upon

the Governor to make appointments, subject to consultation with the High Court of the

State.  It  is  urged  that  this  is  an  independent  source  of  power;  in  exercise  of  this

provision,  the  Governor  can  make  appointment  of  persons  in  the  judicial  service.

Another argument, in the context of power under Article 233 (2) is that the experience

of seven years’ at the bar, applies only to those in practise at the bar. It cannot apply to

those already in the judicial service of the State. The decision in  Rameshwar Dayal

(supra) is relied upon.  The petitioners also urge that Chandra Mohan (supra) decided

that it is only members of the judicial services of any State, who can be considered for

appointment, as District Judges [in addition to Advocates with seven years’ practise at

the Bar, per Article 233 (2)] and not members of the executive branch of the States or

the  Union.  It  is  emphasized that  in  fact,  the  rule  which this  court  had to  consider,

5

permitted judicial officers to compete along with members of the Bar, for selection and

appointment to the post of District Judge.  

7. It was argued, in addition, that the provision by which the quota earmarked for

members of the Bar, to be exclusively competed for by them and for which members of

the judicial services are prohibited from applying, is discriminatory. Learned counsel

highlighted that such a bar (preventing members in the judicial services) from applying

and competing, along with members of the Bar, is arbitrary, because there is no basis

for  such classification.  It  was  submitted in  this  regard that  the  Constitution makers

envisaged  that  only  those  with  talent  could  be  recruited  and  appointed  as  District

Judges; if that were the true objective, a restriction placed on those in judicial service

undermines that purpose. It was submitted that experience gained as a judge is as, if not

more, relevant in discharge of duties and functions as District Judges; on the other hand,

Advocates with enrolment and experience of seven years at the Bar, have no manner of

experience.  Counsel  emphasized  that  the  phrase  used  in  Article  233  i.e.  being  an

advocate of not less than seven years’ standing, has to be considered along with the bar

to members of the services or holders of posts under the Union or the States,  from

competing for the post of District Judge. The Constitution merely underlined that the

lawyer,  competing for  that  post  should not  have  less  than seven years’ experience;

however, for members of the judicial service, neither is a bar (or restriction) expressed,

nor  can  an  implied  bar  be  discerned.  Therefore,  the  absolute  restriction  placed  on

members  of  any  judicial  service,  from competing  along  with  lawyers  in  the  quota

earmarked for  that  purpose,  is  unconstitutional  and void.  It  was  submitted  that  the

decision in Satya Naraian Singh (supra), to the effect that the Constitution made a clear

distinction between the two sources of recruitment and the dichotomy is maintained,

and  that  the  two streams  are  separate  until  they  come  together  by  appointment,  is

erroneous and needs correction. It is further submitted that the decision of this court in

Deepak Aggarwal (supra) to the effect that Article 233 (2) mandates that an applicant

has to be in practise as a member of the Bar, at the time of making the application (for

appointment), was wrongly decided. Deepak Aggarwal (supra) held as follows:

6

“This is clear by use of ‘has been’. The present perfect continuous tense is used for a position which began at some time in the past and is still continuing. Therefore, one of the essential requirements articulated by the above expression in Article 233 (2)  is that such person must with requisite period be continuing as an advocate on the date of application.”    

8.  It was submitted that besides being unduly narrow, the literal interpretation of

Article 233 (2) defeats the broad objective that the framers of the Constitution had in

mind, and their intent to bring in the best minds and those with talent, irrespective of

whether they were members of the Bar,  or holders of judicial office, at the time of

commencement of the recruitment process.  

9. The respondents, both States and High Courts, countered the submissions of

the petitioners, contending that neither Rameshwar Dayal (supra) nor Chandra Mohan

(supra), (both Constitution Bench decisions) held that members of any judicial service

had a right under the Constitution to apply for selection to the post of District Judges,

on the basis that they had been Advocates at some prior point of time. It was pointed

out that Article 233 (1) merely indicates that the appointment to the post of District

Judge is to be made by the Governor, on the recommendation of the High Court; so is

also the case with promotions, postings etc. This provision merely indicates who is the

appointing authority: it also lays down that such appointment cannot be made without

the concurrence or recommendation of  the  High Court  concerned.  Chandra Mohan

(supra), it was submitted, decisively held that the recommendation of the High Court is

binding; it  also clearly held that those in the services of the State,  i.e.  selected and

appointed  to  administrative  or  executive  departments  or  services,  were  barred  from

consideration to the post of District Judge.  

10. It  was  submitted  that  for  the  last  many  decades,  two  clear  streams  of

appointment to the post of District Judge have been delineated in the States: one, by

direct recruitment (from members of the Bar with not less than seven years’ experience)

and two, from among members of the judicial service, fulfilling the requisite criteria,

necessary  to  be  considered  for  promotion.  The  latter  category  are  considered  and

7

recommended for promotion in accordance with rules framed under Article 234 of the

Constitution of India, read with proviso to Article 309.   

         The relevant provisions of the Constitution, for the purposes of this judgment, are

extracted below:

“Article 233 Appointment of district judges

(1)Appointments of persons to be, and the posting and promotion of, district judges  in  any  State  shall  be  made  by  the  Governor  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 a pleader and is recommended by the High Court for appointment.

Article 233A Validation of appointments of, and judgments, etc. delivered by,  certain district judges

Notwithstanding any judgment, decree or order of any court, -

(a) (i)  no appointment of any person already in the judicial service of a State or of  any person who has been for not  less  than seven years an advocate or a pleader, to be a district judge in that State, and (ii)  no posting,  promotion or  transfer  of  any  such person as  a district judge,  made  at  any  time before  the  commencement  of  the  Constitution (Twentieth Amendment) Act, 1966, otherwise than in accordance with the provisions of article 233 or article 235 shall be deemed to be illegal or void or ever to have become illegal or void by reason only of the fact that such  appointment,  posting,  promotion  or  transfer  was  not  made  in accordance with the said provisions;

(b) no jurisdiction exercised,  no judgment,  decree,  sentence or order passed or made, and no other act or proceeding done or taken, before the commencement of the Constitution (Twentieth Amendment) Act, 1966 by, or before,  any person appointed,  posted,  promoted or transferred as a district  judge  in  any  State  otherwise  than  in  accordance  with  the provisions of article 233 or article 235 shall be deemed to be illegal or invalid or ever to have become illegal or invalid by reason only of the fact

8

that such appointment, posting, promotion or transfer was not made in accordance with the said provisions.

Article 234 -Recruitment of persons other than district judges to the judicial  service

Appointments of persons other than district judges to the judicial service  of a State shall be made by the Governor of the State in accordance with  rules made by him in that behalf after consultation with the State Public  Service Commission and with the High Court exercising jurisdiction in  relation to such State.

Article 235 Control over subordinate courts

The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall  be  construed  as  taking  away  from any  such  person  any  right  of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.

Article 236 {Interpretation}

In this Chapter –

(a) the expression "district judge" includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge; (b) the expression "judicial service" means a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge.”

11. It  would  be  first  essential  to  recollect  that  the  power  of  High  Courts,  to

recommend to the Governor, suitable persons, for appointment, is now considered to be

decisive;  the  recommendation  is  almost  always  binding,  barring  in  exceptional

circumstances. This court, in State of West Bengal v. Nripendra Nath Bagchi (1966 (1)

SCR 771) and  High Court of Punjab and Haryana etc. v. State of Haryana 1975 (3)

SCR 365 had ruled that Article 235 vests control in the High Courts over District Courts

and courts subordinate to it. The Governor (of the concerned State) appoints, dismisses

9

and removes Judicial Officers. The control vested in the High Court is complete control

subject to the power of the Governor in the matter of appointment including dismissal,

removal, reduction in rank and the initial posting and of the initial promotion to District

Judges. It was also held that nothing in Article 235 restricts the control of the High

Court in respect of Judges other than District Judges in any manner. This position was

endorsed by a four-judge bench of this court in  State of Haryana vs. Inder Prakash

Anand H.C.S. & Ors. 1976 (2) SCR 977.  

12. In the decision reported as State of Assam and Ors. vs. S.N. Sen & Ors 1972 (2)

SCR 251, a Constitution Bench of this court underlined the unique nature of the power

of the High Courts, while interpreting Articles 233-235 of the Constitution of India:

“13.  Under  the  provisions  of  the  Constitution  itself  the  power  of promotion of persons holding posts inferior to that of the district judge is in the High Court. It stands to reason that the power to confirm such promotions should also be in the High Court.

14. This Court has on several occasions expressed its views on Article 235 of the Constitution. In The State of West Bengal v. Nripendra Nath Bagchi (1968) I LLJ 270 (SC), it was pointed out:

“In the case of the judicial service subordinate to the district judge the appointment has to be made by the Governor in accordance with the rules  to  be  framed after  consultation  with  the  State  Public  Service Commission and the High Court but the power of posting, promotion and grant of leave and the control of the courts are vested in the High Court.”

15.  A year  later,  in  State  of  Assam v.  Ratiga  Mohammed and Ors. (1968) I LLJ 282 SC this Court against observed as follows:

“The High Court is in the day to day control of courts and knows  the  capacity  for  work  of  individuals  and  the requirements of a particular station or Court. The High Court is  better  suited  to  make  transfers  than  a  Minister.  For however  well-meaning  &  Minister  may  be  he  can  never possess the same intimate knowledge of the working of the judiciary as a whole and of individual judges, as the High Court.  He must depend on his department for information. The Chief Justice and his colleagues know these matters and deal  with  them  personally.  There  is  less  chance  of  being

10

influenced  by  secretaries  who  may  withhold  some  vital, information if they are interested themselves. It is also well- known  that  all  stations  are  not  similar  in  climate  and education,  medical  and  other  facilities.  Some  are  good stations and some are not so good. There is less chance of success  for  a  person  seeking  advantage  for  himself  if  the Chief Justice and his colleagues, with personal information, deal with the matter, than when a Minister deals with it on notes and information supplied by a secretary.”

16. This observation was made in relation to a case of transfer, but it applies with greater force to the case of promotion. The result is that we hold that the power of promotion of persons holding posts inferior to that of the district judge being in the High Court, the power to confirm such promotions is also in the High Court.”

13. The decision in Rameshwar Dayal (supra) was in the context of a challenge to

the eligibility of candidates who had been selected and appointed as District Judges.

The main argument – or ground of challenge was that the incumbents/appointees did

not possess seven years’ practise at the Bar: which was repelled by this court. The court

held that the practise of the concerned appointees, which spanned about two decades or

so, in pre-partition India, had to be included for reckoning the seven-year period. The

court considered the provisions of the Bar Councils Act, 1926, and the High Courts

(Punjab)  Order,  1947.  The  relevant  part  of  the  discussion  in  that  judgment,  which

repelled the challenge to the appointments, is extracted below:

“14. Learned Counsel for the appellant has also drawn our attention to Explanation I to clause (3) of Art. 124 of the Constitution relating to the qualifications for appointment as a Judge of the Supreme Court and  to  the  Explanation  to  clause  (2)  of  Art.  217  relating  to  the qualifications for appointment as a Judge of a High Court, and has submitted that where the Constitution-makers thought it necessary they specifically provided for counting the period in a High Court which was formerly in India. Articles 124 and 217 are differently worded and refer  to  an  additional  qualification  of  citizenship  which  is  not  a requirement of Art. 233, and we do not think that clause (2) of Art. 233 can be interpreted in the light of Explanations added to Arts. 124 and 217.

Article 233 is a self-contained provision regarding the appointment of District Judges. As to a person who is already in the service of the

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Union or  of  the  State,  no  special  qualifications  are  laid  down and under clause (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 clause (2) and all that is required is that he should be an advocate or pleader of seven years' standing.

The clause does not say how that standing must be reckoned and if an Advocate of the Punjab High Court is entitled to count the period of his practice in the Lahore High Court for determining his standing at the Bar, we see nothing in Art. 233 which must lead to the exclusion of that period for determining his eligibility for appointment as district judge.

15.  What  will  be  the  result  if  the  interpretation  canvassed for  on behalf of the appellant is accepted ? Then, for seven year beginning from August 15,  1947,  no member of  the Bar of  the Punjab High Court would be eligible for appointment as district judge - a result which  has  only  to  be  stated  to  demonstrate  the  weakness  of  the argument. We have proceeded so far on the first two submissions of learned Counsel for the appellant, and on that basis dealt with his third submission.

It is perhaps necessary to add that we must not be understood to have decided that the expression 'has been' must always mean that learned Counsel for the appellant says it means according to the strict rules of grammar. It may be seriously questioned if an organic Constitution must  be  so  narrowly  interpreted,  and  the  learned  Additional Solicitor-General  has  drawn 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 Allahabad High Court in Mubarak Mazdoor v. K. K. Banerji AIR 1958 All 323 where a different meaning was given to a similar expression occurring in the proviso to sub-section (3) of section 86 of the  Representation  of  the  People  Act,  1951.  We  consider  it unnecessary to pursue this matter further because the respondents we are now considering continued to be advocates of the Punjab High Court when they were appointed as district judges and they had a standing of  more than seven years  when so appointed.  They were clearly eligible for appointment under clause 2 of  Art.  233 of  the Constitution.

16. We now turn to the other two respondents (Harbans Singh and P. R.  Sawhney)  whose  names  were  not  factually  on  the  roll  of Advocates at the time they were appointed as district judges. What is

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their position ? We consider that they also fulfilled the requirements of Art. 233 of the Constitution. Harbans Singh was in service of the State  at  the  time  of  his  appointment,  and  Mr.  ViswanathaSastri appearing for him has submitted that clause (2) of Art. 233 did not apply. We consider that even if we proceed on the footing that both these 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.  They  were Advocates  enrolled in  the Lahore High Court; this is not disputed. Under clause 6 of the High Courts  (Punjab) Order,  1947,  they were recognised as  Advocates entitled to practise in the Punjab High Court till the Bar Councils Act, 1926, came into force. Under section 8(2)(a) of that Act it was the  duty  of  the  High  Court  to  prepare  and  maintain  a  roll  of advocates in which their names should have been entered on the day on which section 8 came into force, that is, on September 28, 1948. The proviso to sub-section (2) of section 8 required them to deposit a fee of Rs. 10 payable to the Bar Council. Obviously such payment could hardly be made before the Bar Council was constituted. We do not agree with learned Counsel for the appellant and the interveners (B. D. Pathak and Om Dutt Sharma) that the proviso had the effect of  taking  away  the  right  which  these  respondents  had  to  come automatically on the roll of advocates under section 8(2)(a) of the Act. We consider that the combined effect of clause 6 of the High Courts  (Punjab)  Order,  1947,  and  section  8(2)(a)  of  the  Bar Councils Act, 1926, was this : from August 15, 1947, to September 28, 1948, they were recognised as Advocates entitled to practise in the  Punjab  High  Court  and  after  September  28,  1948,  they automatically  came on the  roll  of  advocates  of  the  Punjab  High Court but had to pay fee of Rs. 10 to the Bar Council. They did not cease to be advocates at any time or stage after August 15, 1947, and they continued to be advocates of the Punjab High Court till they were appointed as District Judges. They also had the necessary standing of seven years to be eligible under clause (2) of Art. 233 of the Constitution.”

14. It is thus evident, that the main part of the discussion related to the possession

of qualification, i.e. seven years’ experience at the Bar, of the concerned candidates. As

regards some candidates, the argument that they were not members of the Bar on the

date  of  their  appointment  (as  District  Judge)  was  rejected:  “they  continued  to  be

advocates of the Punjab High Court till they were appointed as District Judges. They

also had the necessary standing of seven years to be eligible.”

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A significant aspect, is that this court had no occasion to deal with any rules

framed under Articles 233 or 234, in relation to the appointment or promotion to the

post of District Judge.  

15. The  next  decision  is  of  Chandra  Mohan  (supra).  There,  the  issue  was

regarding eligibility of certain candidates, who were members of the civil services or

holders of civil posts of, the State. This court first noticed the relevant provisions and

observed as follows:

“20.  The  gist  of  the  said  provisions  may  be  stated  thus  : Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State. There are two sources of recruitment, namely, (i) service of the Union or of the State, and (ii) members of the Bar. The said judges from the first source are appointed in consultation with the High Court and those from the second sources 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  district  courts  and  courts  subordinate  thereto, subject to certain prescribed limitations.”

16. Thereafter, the court held that the expression  “not already in the service” of

the  Union  or  any  State  meant  that  those  holding  civil  posts,  or  members  of  civil

services, i.e. occupying non-judicial posts, were ineligible to compete for selection and

appointment as District Judge; thus, only those in service as judges, or members of

judicial services could be considered for appointment.  

17. Satya Naraian Singh (supra) is a direct authority on the issue which this court

is  now concerned with.   There,  members  of  the  UP judicial  service  responded and

applied to direct recruitment posts in the UP Higher Judicial Service claiming that they

had  acquired  7  years’ practice  at  the  bar  prior  to  their  appointment  to  the  judicial

service.  The  High  Court  ruled  that  they  were  ineligible  for  appointment  by  direct

recruitment  to  UP  Higher  Judicial  Service.    On  appeal,  it  was  urged  that  any

interpretation of Article 233 which would render a member of the Subordinate judicial

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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

unjustified. This court, after noticing  Rameshwar Dayal  (supra)  and Chandra Mohan

(supra) held as follows:

“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 (sic. ship) cannot sail both the streams simultaneously.  

After quoting Chandra Mohan (supra) the court concluded:

“Subba Rao,  C.J.  after  referring to Articles 233,234,  235,  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."

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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.”

18. In the decision reported as Deepak Agarwal (supra) this court had to deal with

a conflict  between certain  previous  judgments,  on  the  question  of  whether  salaried

public prosecutors or government counsel, after obtaining full time employment under

the State (or the Union) could be considered as members of the Bar, i.e. those practising

in the courts, for the purpose of Article 233 (2). The court, after an elaborate analysis of

the previous decisions, observed as follows:

“… by  the  above  resolution  of  the  Bar  Council  of  India,  the second and third para of Rule 49 have been deleted but we have to see the effect of such deletion. What Rule 49 of the BCI Rules provides  is  that  an  advocate  shall  not  be  a  full  time  salaried employee  of  any  person,  government,  firm,  corporation  or concern so long as he continues to practice. The ‘employment’ spoken  of  in  Rule  49  does  not  cover  the  employment  of  an

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advocate  who  has  been  solely  or,  in  any  case,  predominantly employed to act and/or plead on behalf of his client in courts of law. If a person has been engaged to act and/or plead in court of law as an advocate although by way of employment on terms of salary and other service conditions, such employment is not what is covered by Rule 49 as he continues to practice law but, on the other hand, if he is employed not mainly to act and/or plead in a court of law, but to do other kinds of legal work, the prohibition in Rule 49 immediately comes into play and then he becomes a mere employee and ceases  to  be an advocate.  The bar  contained in Rule 49 applies to an employment for work other than conduct of cases in courts  as an advocate.  In this  view of the matter,  the deletion  of  second  and  third  para  by  the  Resolution  dated 22.6.2001  has  not  materially  altered  the  position  insofar  as advocates who have been employed by the State Government or the Central Government to conduct civil and criminal cases on their behalf in the courts are concerned.

85. What we have said above gets fortified by Rule 43 of the BCI Rules. Rule 43 provides that an advocate, who has taken a full- time service or part-time service inconsistent with his practising as  an  advocate,  shall  send  a  declaration  to  that  effect  to  the respective State Bar Council within time specified therein and any default  in  that  regard  may  entail  suspension  of  the  right  to practice. In other words, if full-time service or part-time service taken  by  an  advocate  is  consistent  with  his  practising  as  an advocate,  no  such  declaration  is  necessary.  The  factum  of employment is  not material but the key aspect is whether such employment is consistent with his practising as an advocate or, in other words, whether pursuant to such employment, he continues to act and/or plead in the courts. If the answer is yes, then despite employment he continues to be an advocate. On the other hand, if the answer is in negative, he ceases to be an advocate.

86. An advocate has a two-fold duty: (1) to protect the interest of his client and pursue the case briefed to him with the best of his ability,  and  (2)  as  an  officer  of  the  Court.  Whether  full-time employment creates any conflict of duty or interest for a Public Prosecutor/Assistant Public Prosecutor? We do not think so. As noticed above, and that has been consistently stated by this Court, a  Public  Prosecutor  is  not  a  mouth-  piece of  the  investigating agency. In our opinion, even though Public Prosecutor/Assistant Public Prosecutor is in full-time employ with the government and is  subject  to  disciplinary  control  of  the  employer,  but  once  he appears in the court for conduct of a case or prosecution, he is

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guided by the norms consistent with the interest of justice.  His acts always remain to serve and protect the public interest. He has to discharge his functions fairly, objectively and within the framework  of  the  legal  provisions.  It  may,  therefore,  not  be correct to say that an Assistant Public Prosecutor is not an officer of the court. The view in Samarendra Das to the extent it holds that an Assistant Public Prosecutor is not an officer of the Court is not a correct view.”

Dealing specifically with the issue of the requirement under Article 233 (1) that

the applicant “has been” in practise for 7 years, this court significantly held as follows:

“88. As regards construction of the expression, “if he has been for not  less  than seven years an advocate” in Article 233 (2)  of  the Constitution,  we  think  Mr.  Prashant  Bhushan  was  right  in  his submission that this expression means seven years as an advocate immediately preceding the application and not seven years any time in the past. This is clear by use of ‘has been’. The present perfect continuous tense is used for a position which began at some time in the  past  and  is  still  continuing.  Therefore,  one  of  the  essential requirements articulated by the above expression in Article 233 (2) is that such person must with requisite period be continuing as an advocate on the date of application.

89. Rule 11 of the HSJS Rules provides for qualifications for direct recruits in Haryana Superior Judicial Service. Clause (b) of this rule provides  that  the  applicant  must  have  been  duly  enrolled  as  an advocate and has practised for a period not less than seven years. Since we have already held that these five private appellants did not cease  to  be  advocate  while  working  as  Assistant  District Attorney/Public  Prosecutor/Deputy  Advocate  General,  the  period during which they have been working as such has to be considered as  the  period  practising  law.  Seen  thus,  all  of  them  have  been advocates  for  not  less  than  seven  years  and  were  enrolled  as advocates  and  were  continuing  as  advocates  on  the  date  of  the application.”

19. It is clear that what this court had to consider was whether public prosecutors

and  government  advocates  were  barred  from  applying  for  direct  recruitments  (i.e.

whether they could be considered to have been in practise) and whether- during their

course of their employment, as public prosecutors etc, they could be said to have “been

for not less than seven years” practising as advocates. The court quite clearly ruled that

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such public prosecutors/government counsel (as long as they continued to appear as

advocates before the court) answered the description and were therefore eligible.  

20. In  Vijay  Kumar  Mishra  (supra)  the  challenge  was  to  the  rejection  of  a

representation (of the petitioners) to appear in interview for the post of District Judge Entry

Level (Direct from Bar) Examination, 2015. A condition, i.e. that they had to tender their

resignation,  first,  from  the  Subordinate  Judicial  Service  of  the  State  of  Bihar  as  a

precondition that they could appear in the interview was imposed. The facts were that the

petitioners, who were practising advocates with seven years’ practise, on the cut-off date

(5th February, 2015) and applied as such to the posts, responding to an application; they

were permitted to and appeared in the Preliminary as well as in the Mains Examination

pursuant to such advertisement. Before the publication of the results of the test, for the

post, they qualified in and were appointed to the Bihar State Subordinate Judicial Service

in the 28th Batch. They accordingly joined the subordinate judicial service in August, 2015.

The result of the mains examination of the District Judge Entry Level (Direct from Bar)

was  published  on  22nd  of  January,  2016.  The  petitioners  qualified  in  the  Mains

Examination. They however were not called for interview; their request was dealt with, and

they were asked to resign from the subordinate judicial service, as a precondition, which

was challenged. The High Court repelled the challenge holding that to permit the appellant

to participate in the interview would be breaching the mandate of Article 233 (2) holding

that since before the date of interview, they joined the judicial service, they could not in

terms of the Article 233 (2) of the Constitution, be permitted to continue with the selection

process for District Judge Entry Level (Direct from Bar) as they were, members of the

judicial Service.  

21. The court in Vijay Kumar Mishra (supra) after noticing Satya Naraian Singh

(supra) and Deepak Agarwal (supra) held that:

“7.  It  is  well  settled  in  service  law  that  there  is  a  distinction between selection and appointment. Every person who is successful in the selection process undertaken by the State for the purpose of filling up of certain posts under the State does not acquire any right to  be  appointed  automatically.  Textually,  Article  233  (2)  only prohibits the appointment of a person who is already in the service of the Union or the State, but not the selection of such a person.

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The right of such a person to participate in the selection process undertaken  by  the  State  for  appointment  to  any  post  in  public service  (subject  to  other  rational  prescriptions  regarding  the eligibility  for  participating in  the selection  process  such as age, educational  qualification  etc.)  and  be  considered  is  guaranteed under Art. 14 and 16 of the Constitution.

8. The text of Article 233 (2) only prohibits the appointment of a person as a District Judge, if such person is already in the service of either the Union or the State. It does not prohibit the consideration of the candidature of a person who is in the service of the Union or the State. A person who is in the service of either of the Union or the State would still have the option, if selected to join the service as a District Judge or continue with his existing employment. Compelling a person to  resign  his  job  even for  the purpose  of  assessing  his suitability for appointment as a District Judge, in our opinion, is not permitted  either  by  the  text  of  Article  233  (2)  nor  contemplated under  the  scheme  of  the  constitution  as  it  would  not  serve  any constitutionally desirable purpose.”

22. Justice Chelameshwar held that that neither of the two decisions [Satya Naraian

Singh (supra)  and  Deepak Agarwal (supra)] dealt  with the issue on hand.  The other

member of the Bench (Justice Sapre) concurred, stating as follows:

“12) In my opinion, there is no bar for a person to apply for the post of district judge, if he otherwise, satisfies the qualifications prescribed for the post while remaining in service of Union/State. It is only at the time of his appointment (if occasion so arises) the question of his eligibility arises. Denying such person to apply for participating in selection process when he otherwise fulfills all conditions prescribed in the advertisement by taking recourse to  clause  (2)  of  Article  233  would,  in  my  opinion,  amount  to violating his right guaranteed under Articles 14 and 16 of the Constitution of India.

13) It is a settled principle of rule of interpretation that one must have  regard  to  subject  and  the  object  for  which  the  Act  is enacted. To interpret a Statue in a reasonable manner, the Court must place itself  in a chair of reasonable legislator/author. So done, the rules of purposive construction have to be resorted to so that the object of the Act is fulfilled. Similarly,  it  is  also a recognized rule of interpretation of Statutes that expressions used therein should ordinarily be understood in the sense in which they  best  harmonize  with  the  object  of  the  Statute  and which

20

effectuate  the  object  of  the  legislature.  (See-Interpretation  of Statues  12th  Edition,  pages  119  and  127  by  G.P.Singh).  The aforesaid  principle,  in  my  opinion,  equally  applies  while interpreting the provisions of Article 233 (2) of the Constitution.”

23. It is thus evident, that Rameshwar Dayal (supra) was mainly concerned with

the question whether practice as a pleader or advocate, in pre-partition India could be

reckoned, for the purpose of calculating the seven-year period, stipulated in Article 233

(2).  No  doubt,  there  are  some  observations,  with  respect  to  appointments  being

referable to Article 233 (1). However, the important aspect which is to be kept in mind,

is that no rules were discussed; the experience of the concerned Advocates, who were

appointed as District Judges, were for a considerable period, in pre-partition India, in

the erstwhile undivided Punjab.  Chandra Mohan (supra),  on the other hand is a clear

authority – and an important judgment, on the aspect that those in the service of or

holding posts,  under  the  Union  or  States,  -  if  they  are  not  in  judicial  service-  are

ineligible for appointment as District Judges, under Article 233 (2) of the Constitution.

The corollary was that those holding judicial posts were not barred as holders of office

or  posts  under the Union or  the State.  Significantly,  this  court  in  Chandra Mohan

(supra),  invalidated a rule which rendered both officers holding executive positions,

under  the  State,  and those holding judicial  posts,  eligible  to  apply for  appointment

under Article 233 (2). In  Satya Naraian Singh (supra)  this court clearly held that the

disqualification  of  those  holding  judicial  posts  from  applying  as  Advocates,  under

Article 233 (2) did not violate Article 14: 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 (sic ship) cannot sail

both the streams simultaneously.”  

24. A close reading of Article 233, other provisions of the Constitution, and the

judgments discussed would show discloses the following:

(a) That the Governor of a State has the authority to make  “appointments of

persons to  be,  and the  posting and promotion of,  district  judges  in  any  State

(Article 233 [1]);

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(b) While  so  appointing  the  Governor  is  bound  to  consult  the  High  Court

(Article  233  [1]:  Chandra  Mohan  (supra)  and  Chandramouleshwar  Prasad  v

Patna High Court 1970 (2) SCR 6662);

(c)  Article  233 (1)  cannot  be construed as a source of  appointment;  it  merely

delineates as to who is the appointing authority;

(d) In matters relating to initial posting, initial appointment, and promotion of

District Judges, the Governor has the authority to issue the order; thereafter it is up

to  the  High  Court,  by  virtue  of  Article  235,  to  exercise  control  and

superintendence over the conditions of service of such District Judges. (See State

of Assam v Ranga Mahammad 1967 (1) SCR 4543);

2 The court in Chandramouleshwar Prasad  held that  

“No doubt the appointment of a person to be a District Judge rests with the Governor but he cannot make the appointment on his own initiative and must do so in consultation with the High Court. The underlying idea of the Article is that the Governor should make up his mind after there has been a deliberation with the High

Court.”  3 This court held as follows:

“By the first of these articles the question of appointment is considered separately but by the second of these articles posting and promotion of persons belonging to the judicial service of the State and holding any post inferior to the post of a district Judge is also vested in the High Court. The word 'post' used twice in the article clearly means the position or job and not the station or place and 'posting' must obviously mean the assignment to a position or job and not placing in-charge of a station or Court. The association of words in Art 235  is much clearer but as the word 'posting' in the earlier article deals with the same subject matter, it was most certainly used in the same sense and . this conclusion is thus quite apparent. This is, of course, as it should be. The High Court is in the day to day control of courts and knows the capacity for work of individuals and the requirements of a particular station or Court. The High Court is better suited to make transfers than a Minister. For however well-meaning a Minister may be he can never possess the same intimate knowledge of the working of the judiciary as a whole and of individual Judges, as the High Court. He must depend on his department for information. The Chief Justice and his colleagues know these matters and deal with them personally. There is less chance of being influenced by secretaries who may withhold some vital information if they are interested themselves. It is also well-known that all stations are not similar in climate and education, medical and other facilities. Some are good stations and some are not so good. There is less chance of success for a person seeking advantage for himself if the Chief Justice and his colleagues, with personal information, deal with the matter, than when a Minister deals with it on notes and information supplied by a secretary. The reason of the rule and the sense of the matter combine to suggest the narrow meaning accepted by us. The policy displayed by the Constitution has been in this direction as has been explained in earlier cases of this Court. The High Court was thus right in its conclusion that the powers of the Governor cease after he has appointed or promoted a person to be a district Judge and assigned him to  a post  in  cadre.  Thereafter,  transfer  of  incumbents  is  a  matter  within  the  control  of  District  Courts including the control of persons presiding there as explained in the cited case.

As the High Court is the authority to make transfers, there was no question of a consultation on this account.  The  State  Government  was  not  the  authority  to  order  the  transfers.  There  was,  however,  need  for consultation  before  D.  N.  Deka  was  promoted  and posted  as  a  District  Judge.  That  such  a  consultation  is mandatory has been laid down quite definitely in the recent decision of this Court in Chandra Mohan v UP  On

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(e) Article  233  (2)  is  concerned  only  with  eligibility of  those  who  can  be

considered for appointment as District Judge. The Constitution clearly states that

one who has been for not less than seven years, “an advocate or pleader” and one

who is “not already in the service of the Union or of the State” (in the sense that

such person is not a holder of a civil or executive post, under the Union or of a

State) can be considered for appointment, as a District judge. Significantly, the

eligibility- for both categories, is couched in negative terms. Clearly, all that the

Constitution  envisioned  was  that  an  advocate  with  not  less  than  seven  years’

practise could be appointed as a District Judge, under Article 233 (2).  

(f) Significantly, Article 233 (2)  ex facie does not exclude judicial officers from

consideration for appointment to the post of District Judge.  It, however, equally

does not spell out any criteria for such category of candidates. This does not mean

however, that if they or any of them, had seven years’ practise in the past, can be

considered  eligible,  because  no  one  amongst  them can  be  said  to  answer  the

description of a candidate who  “has been for not less than seven years” “an

advocate  or a pleader”  (per  Deepak Agarwal,  i.e.  that  the  applicant/candidate

should  be  an  advocate  fulfilling  the  condition  of  practise  on  the  date  of  the

eligibility  condition,  or  applying  for  the  post).  The  sequitur  clearly  is  that  a

judicial officer is not one who has been for not less than seven years, an advocate

or pleader.  

25. The net  result  of  the  decision in  Chandra Mohan (supra),  and subsequent

decisions which followed it, is that Article 233 (2) renders ineligible all those who hold

civil posts under a State or the Union, just as it renders all advocates with less than

seven years’ practice  ineligible,  on the  date  fixed for  reckoning eligibility.  Equally,

those in judicial service [i.e. holders of posts other than District Judge, per Article 236

(2)] are not entitled to consideration because the provision (Article 233 [2])  does not

this part of the case it is sufficient to say that there was consultation.”

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prescribe any eligibility condition. Does this mean that any judicial officer, with any

length of service as a member of the judicial service, is entitled to consideration under

Article 233 (2)? The answer is clearly in the negative. This is because the negative

phraseology through which eligibility of holders of civil posts, or those in civil service

(of  the  State  or  the  Union)  and  advocates  with  seven  years’ service  is  couched.

However, the eligibility conditions are not spelt out in respect of those who are in the

judicial service.  

26. The omission, - in regard to spelling out the eligibility conditions  vis-à-vis

judicial officers, to the post of District Judge, in the opinion of this court, is clearly by

design.  This  subject  matter is  covered by three provisions:  Article 233 (1) – which

refers to promotions to the post of District Judge; Article 234, which, like Article 233

(1) constitutes the Governor as the appointing authority in respect of judicial posts or

services,  (other  than  District  Judges),  and  like  Article  233  (1),  subject  to

recommendation of the High Court concerned. This position is most definitely brought

home by the fact that Article 235 vests in the High Courts the power of supervision and

control of the judicial service, “including the posting and promotion of, and the grant

of leave to, persons belonging to the judicial service of a State and holding any post

inferior to the post  of  district  judge.” The corollary to  this  is  that  the  Governor is

appointing authority for the post of District Judge, and other judicial posts; both are to

be filled after prior consultation with the High Court, and crucially, the promotion of

judicial officers, to the post of District Judge, is regulated by conditions (read rules)

framed by the High Court.        

27. The upshot of the above discussion is  that  the Constitution makers clearly

wished to draw a distinction between the two sources of appointment to the post of

District Judge. For one, i.e. Advocates, eligibility was spelt out in negative phraseology,

i.e. not less than seven years’ practice; for judicial officers, no eligibility condition was

stipulated  in  Article  233  (2):  this  clearly  meant  that  they  were  not  eligible  to  be

appointed (by direct recruitment) as they did not and could not be considered advocates

with seven years’ practise, once they entered the judicial service. The only channel for

their  appointment,  was  in  accordance  with  rules  framed  by  the  High  court,  for

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promotion  (as  District  Judges)  of  officers  in  the  judicial  service  (defined  as  those

holding posts other than District Judges, per Article 236 [b]).  

28. In view of the above discussion clearly, the decision in  Satya Naraian Singh

(supra)  correctly  appreciated  the  relevant  provisions  and  held  that  the  dichotomy

between the two streams meant that those in one stream (read judicial service) could not

compete for vacancies falling in the quota earmarked for advocates.  

29. The petitioners had urged that  the court  should endeavour and interpret  the

provisions  of  the  Constitution  in  a  broad  manner,  rather  than  placing  a  narrow

interpretation  and  that  rendering  ineligible  those  with  seven  years’  practise  as

advocates, but who were appointed to judicial posts, would be violative of Article 14 of

the Constitution of India. It was emphasized in this regard, that there is no distinction

between those who continue to practice and those, who had practiced for seven years,

later  joined  the  judicial  service  and  continued  in  it,  as  on  the  date  of  reckoning

eligibility. It was urged that those in judicial service are in fact better qualified, because

they would be experienced in discharging functions relating to a judicial office, whereas

those who continue to practice, and remain advocates, would not have such benefit. As

between the two, therefore, those holding judicial office, would be better suited. It was

therefore urged, that if they are permitted to compete for the post of District Judge,

without insisting that they should resign, society would have a greater pool of merit to

pick up from. The last argument was since both categories fulfilled the basic condition

of seven years’ practise,  excluding those in  judicial  service,  does  not  sub-serve the

object of recruitment, i.e. selecting the best candidates.  

30. In the opinion of this court, there is an inherent flaw in the argument of the

petitioners.  The  classification  or  distinction  made-  between  advocates  and  judicial

officers, per se is a constitutionally sanctioned one. This is clear from a plain reading of

Article 233 itself. Firstly, Article 233 (1) talks of both appointments and  promotions.

Secondly,  the classification is  evident  from the description of  the two categories  in

Article 233 (2): one “not already in the service of the Union or of the State” and the

other “if he has been for not less than seven years as an advocate or a pleader”. Both

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categories are to be “recommended by the High Court for appointment.”  The intent

here was that in both cases, there were clear exclusions, i.e. advocates with less than

seven years’ practice (which meant, conversely that those with more than seven years’

practice were eligible) and those holding civil posts under the State or the Union. The

omission of judicial officers only meant that such of them, who were recommended for

promotion, could be so appointed by the Governor. The conditions for their promotion

were left exclusively to be framed by the High Courts.  

31. In view of the above analysis, since the Constitution itself makes a distinction

between advocates on the one hand, and judicial officers, on the other, the argument of

discrimination is insubstantial. If one examines the scheme of appointment from both

channels closely- as Justice Mishra has done- it is evident that a lions’ share of posts are

to be filled by those in the judicial service. For the past two decades, only a fourth

(25%) of the posts in the cadre of District Judges (in every State) are earmarked for

advocates;  the  balance 75% to be filled exclusively from amongst  judicial  officers.

50%, (out of 75%) is to be filled on the basis of seniority cum merit, whereas 25% (of

the 75%) is to be filled by departmental examination. This examination is confined to

members of the judicial service of the concerned State. The decision of this court in All

India Judges' Association & Ors v Union of India & Ors 2010 (15) SCC 170, reduced

the limited departmental examination quota (out of turn promotion quota) from 25% to

10%  which  took  effect  from  01.01.2011.  Thus,  cumulatively,  even  today,  judicial

officers are entitled to be considered for appointment, by promotion, as District Judges,

to the extent of 75% of the cadre relating to that post, in every State. It is therefore, held

that the exclusion- by the rules, from consideration of judicial officers, to the post of

District Judges, in the quota earmarked for Advocates with the requisite standing, or

practice, conforms to the mandate of Articles 233-235, and the rules are valid.  

32. This  court  is  also of  the  opinion that  if  rules  of  any State  permit  judicial

officers to compete in the quota for appointment as District Judges, they are susceptible

to challenge. The reason for this conclusion is that where a dichotomy is maintained,

and two distinct sources for appointment are envisaged, like the present, enabling only

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judicial  officers  to compete in the quota earmarked for  advocates would potentially

result in no one from the stream of advocates with seven or more years’ practice, being

selected. This  would be contrary to the text and mandate of Article 233 (2),  which

visualized that such category of candidates would always be eligible and occupy the

post of District  Judge. Clear quotas for both sources have been earmarked by High

Courts.  If one those in one stream, or source- i.e.  judicial officers- are permitted to

compete in  the quota earmarked for  the  other  (i.e.  advocates)  without  the  converse

situation  (i.e.  advocates  competing  in  the  quota  earmarked for  judicial  officers-  an

impossibility) the result would be rank discrimination.       

33. Another strong reason drives us to this conclusion. The Constitution makers

were aware that the judicial branch had to be independent, and at the same time, reflect

a  measure  of  diversity  of  thought,  and  approach.  This  is  borne  out  by  eligibility

conditions spelt out clearly in regard to appointments at every level of both the lower

and higher judiciary:  the District court,  the High Courts and the Supreme Court.  In

regard  to  judicial  positions  in  each  of  these  institutions,  the  Constitution  enables

appointments, from amongst members of the Bar, as its framers were acutely conscious

that practising advocates reflect independence and are likely offer a useful attribute, i.e.

ability to think differently and have novel approaches to interpretation of the laws and

the Constitution, so essential for robustness of the judiciary, as well as society as a

whole.   

34. This view is fortified by Article 217 (2), which spells out two sources from

which appointments can be resorted to for the position of judge of a High Court: firstly,

member of a judicial service of a State [Article 217 (a)] and an advocate with ten years’

experience  [Article  217  (b)].  For  the  Supreme  Court,  Article  124  (3)  (a)  enables

consideration of a person with five years’ experience as a High Court judge; Article

124(3)(b) enables consideration of an advocate with ten years’ experience at the bar in

any  High  Court;  Article  124(3)(c)  enables  consideration  of  a  distinguished  jurist.

Significantly, advocates with stipulated experience at the bar are entitled, by express

provisions of the Constitution [Articles 233 (2), Article 217 (b) and Article 124 (3) (b)]

27

to be considered for appointment to the District Courts, High Courts and the Supreme

Court, respectively. However, members of the 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 be considered for appointment to

the Supreme Court. Likewise, academics or distinguished jurists, with neither practise

at the Bar, nor any experience in the judicial service, can be considered for appointment

as District Judge, or as High Court judge.

35. The Constitution makers, in the opinion of this court, consciously wished that

members of the Bar, should be considered for appointment at all three levels, i.e. as

District judges, High Courts and this court. This was because counsel practising in the

law courts have a direct link with the people who need their services; their views about

the functioning of the courts, is a constant dynamic. Similarly, their views, based on the

experience  gained  at  the  Bar,  injects  the  judicial  branch  with  fresh  perspectives;

uniquely positioned as a professional, an advocate has a tripartite relationship: one with

the public, the second with the court, and the third, with her or his client. A counsel,

learned in the law, has an obligation, as an officer of the court, to advance the cause of

his client, in a fair manner, and assist the court. Being members of the legal profession,

advocates  are  also  considered  thought  leaders.  Therefore,  the  Constitution  makers

envisaged that at every rung of the judicial system, a component of direct appointment

from members of the Bar should be resorted to.  For all these reasons, it is held that

members of the judicial service of any State cannot claim to be appointed for vacancies

in the cadre of District Judge, in the quota earmarked for appointment from amongst

eligible Advocates, under Article 233.

36. This court is of the opinion that the decision in Vijay Kumar Mishra (supra), as

far as it makes a distinction between consideration, of a candidate’s eligibility, at the

stage of selection, and eligibility reckonable at the time of appointment, is incorrect.

There  is  clear  authority  to  the  proposition that  eligibility  of  any candidate  is  to  be

reckoned, not from the date of his or her selection, but in terms of the rules, or the

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advertisement for the post. In  Ashok Kumar Sharma & Ors. vs. Chander Shekhar &

Ors 1997 (4) SCC 18, a three-judge bench of this court held as follows:

“6….The  proposition  that  where  applications  are  called  for prescribing  a  particular  date  as  the  last  date  for  filing  the applications,  the  eligibility  of  the  candidates  shall  have  to  be judged with reference to that date and that date alone, is a well- established  one.  A  person  who  acquires  the  prescribed qualification  subsequent  to  such  prescribed  date  cannot  be considered  at  all.  An  advertisement  of  notification issued/published  calling  for  application  constitutes  a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it.

7. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before  the  date  of  interview would be allowed to  appear for  the interview, other similarly placed persons could also have applied. Just because some of the person had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis.

8. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed  in  the  majority  Judgment.  This  is  also  the  proposition affirmed in Rekha Chaturvedi (Smt.) v. University of Rajasthan and Ors. (1993) I LLJ 617 (SC). The reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview, the Recruiting Authority was able to get the best talent available and that  such  course  was  in  furtherance  of  public  interest  is,  with respect,  an  impermissible  justification.  It  is,  in  our  considered opinion, a clear error of law and an error apparent on the face of the record. In our opinion, R.M. Sahai, J.(and the Division Bench of the High Court) was right in holding that the 33 respondents could not have been allowed to appear for the interview.”

This  reasoning  is  similar  to  other  decisions,  such  as  U.P.  Public  Service

Commission v Alpana 1994 (2) SCC 723 and Bhupinderpal Singh & Ors. vs. State of

Punjab & Ors  2000 (5) SCC 262. Therefore, the observation in  Vijay Kumar Mishra

(supra) that “the right of such a person to participate in the selection process undertaken

by  the  State  for  appointment  to  any  post  in  public  service  (subject  to  other  rational

prescriptions regarding the eligibility for participating in the selection process such as age,

29

educational qualification etc.) and be considered is guaranteed under Art. 14 and 16 of the

Constitution” is  not  correct.  With  respect,  the  distinction  sought  to  be  made,  between

“selection”  and  “appointment” in  the  context  of  eligibility,  is  without  foundation.  A

selection  process  begins  with  advertisement,  calling  for  applications  from  eligible

candidates.  Eligibility  is  usually  defined  with  reference  to  possession  of  stipulated

qualifications,  experience,  and age,  as on the last  date (of receipt of applications, or a

particular specified date, etc). Anyone fulfilling those eligibility conditions, with reference

to such date, would be ineligible. Therefore, the observation that the right to participate in

the  selection  process,  without  possessing  the  prescribed  eligibility  conditions,  is

guaranteed, is not correct; the right is guaranteed only if the candidate concerned fulfils the

requisite eligibility criteria, on the stipulated date. As pointed out by the three judge bench

decision, if the contrary is correct, one acquiring the stipulated qualifications subsequent

to the  prescribed date  cannot  be  considered.  Also,  one not  fulfilling  the  conditions

cannot be allowed to participate, because, as held in Ashok Kumar Sharma (supra), if it

were known, that such ineligible candidates can be considered, those who do not apply,

but  are  better  placed than  the  ineligible  candidates  who are  allowed to  participate,

would be left  out.  Moreover,  the  authority  publishing the  advertisement/notification

represents to the members of the public that it is bound by such representation.  

37. As a result of the above discussion, it is held that Vijay Kumar Mishra (supra),

to the extent that it is contrary to Ashok Kumar Sharma (supra), as regards participation

in the selection process,  of candidates who are members of the judicial service, for

appointment  to  the  post  of  District  Judge,  from  amongst  the  quota  earmarked  for

advocates with seven years’ practice, was wrongly decided. To that extent, Vijay Kumar

Mishra (supra) is hereby overruled.

38. In the  light  of  the  foregoing discussion,  it  is  held that  under  Article  233,  a

judicial officer, regardless of her or his previous experience as an Advocate with seven

years’ practice cannot apply, and compete for appointment to any vacancy in the post of

30

District Judge; her or his chance to occupy that post would be through promotion, in

accordance with Rules  framed under Article  234 and proviso to  Article  309 of  the

Constitution of India.

........................................J.                                                                            [S. RAVINDRA BHAT]

New Delhi, February 19, 2020.