DHEERAJ MOR versus HON’BLE HIGH COURT OF DELHI

[2020] 2 S.C.R. 161

DHEERAJ MOR

HON’BLE HIGH COURT OF DELHI

(Civil Appeal No. 1698 of 2020)

FEBRUARY 19, 2020

[ARUN MISHRA, VINEET SARAN ANDS. RAVINDRA BHAT, JJ.]

Constitution of India – Arts.233-235 – Interpretation ofArt.233 – Eligibility of members of subordinate judicial service forappointment as District Judge against the quota reserved for barmembers by way of direct recruitment – Petitioners who are in judicialservice inter alia claimed that there are two sources of recruitmentu/Art.233(2)- from judicial service and from the bar; thus, personin judicial service with 7 years practice at the bar before joiningservice (or combined with service as judicial officer), can competewith members of the bar (with 7 or more years’ practice), for directrecruitment, in the quota earmarked to be filled by such advocates– Matter referred by Division Bench of Supreme Court – Answeringthe reference, Held: Per Arun Mishra and Vineet Saran, JJ. –Members in the judicial service of the State can be appointed asDistrict Judges by way of promotion/limited competitive examination– For the purpose of Art.232(2), an advocate continuing in practicefor not less than 7 years as on the cut-off date and at the time ofappointment as District Judge can be appointed as District Judgeby way of direct recruitment if he is not already in the judicial serviceof the Union or State – Members of judicial service having 7years’ of practice before joining service (or combined with serviceas judicial officer) are not eligible to apply for direct recruitmentas District Judge – Rules framed by High Court prohibiting judicialservice officers from staking claim to the post of District Judgeagainst the posts reserved for Advocates by way of directrecruitment, are not ultra vires and are in conformity with Arts.14,16 & 233 – In cases where in-service incumbents were appointedby way of direct recruitment from bar (in view of various interimorders passed by Supreme Court in Dheeraj Mor and other cases,though later vacated), in view of dismissal of the writ petitions filed

Aby judicial officers, they cannot continue as District Judges – Tobe reverted to their original post – In case their right in channel forpromotion had already ripened, and their juniors were promoted,High Court to consider their promotion in accordance with prevailingrules – Per S. Ravindra Bhat, J. (Supplementing) – Under Art.233,a judicial officer, regardless of her or his previous experience asBan Advocate with seven years’ practice can not apply, and competefor appointment to any vacancy in the post of District Judge – Her/his chance to occupy that post would be through promotion, inaccordance with Rules framed u/Art.234 and proviso to Art.309 –Exclusion- by the rules, from consideration of judicial officers, toCthe post of District Judges, in the quota earmarked for advocateswith the requisite standing, or practice, conforms to the mandate ofArts. 233-235, and the rules are valid – Service Law – HigherJudicial Service – Interpretation of Statutes.

Constitution of India – Arts. 233(1), 234, 235 – Held: PerDArun Mishra and Vineet Saran, JJ. – Governor of State is theauthority for the purpose of appointment, promotion, posting andtransfer – Eligibility is governed by Rules framed u/Arts. 234 &235 – Per S. Ravindra Bhat, J. (Supplementing) – Governor of aState has the authority to make “appointments of persons to be,and the posting and promotion of, district judges in any State –EWhile so appointing, the Governor is bound to consult the HighCourt – Art. 233 (1) cannot be construed as source of appointment;it merely delineates as to who is the appointing authority – In mattersrelating to initial posting, initial appointment, and promotion ofDistrict Judges, the Governor has the authority to issue the order;Fthereafter it is up to the High Court, by virtue of Art.235, to exercisecontrol and superintendence over the conditions of service of suchDistrict Judges – Service Law – Higher Judicial Service.Constitution of India – Art. 233(2) – Eligibility of judicialofficers to compete as against the post of District Judge by way ofGdirect recruitment – Participation in selection process vis-a-visappointment – Plea of petitioners placing reliance on Vijay KumarMishra & Anr. v. High Court of Judicature at Patna & Ors. reported as[2016] 3 SCR 806 in which it was held that the bar prescribedu/Art.233(2) prohibits only the appointment of persons in serviceof Central/State Govt. and not their participation in the recruitmentH

process and in case they are selected, they can resign and join thepost – Held: Per Arun Mishra and Vineet Saran, JJ. – Vijay KumarMishra providing eligibility of judicial officer to compete as againstthe post of District Judge by way of direct recruitment, does not laydown the law correctly – Overruled – Per S. Ravindra Bhat, J.(Supplementing) – Vijay Kumar Mishra, as far as it makes adistinction between consideration of candidate’s eligibility at thestage of selection, and eligibility reckonable at the time ofappointment, is incorrect – Eligibility of any candidate is to bereckoned not from the date of his or her selection, but in terms ofthe rules, or the advertisement for the post – Service Law – HigherJudicial Service.

Service Law – Higher Judicial Service – Recruitment to theposts of District Judges from two sources- in-service and from theBar – Claim by candidates from judicial service as against the postsreserved for direct recruitment from the Bar – Held: Per Arun Mishraand Vineet Saran, JJ. – Makers of the Constitution visualised andthe law administered in the country for last seven decades revealsthat the aforesaid modes of recruitment and two separate sourcesare recognised – No room to entertain submission of discriminationbased on Arts.14 & 16 – Art.233(2) starts with the negative “not,”which disentitles the claim of judicial officers against the postreserved for practicing advocates/pleaders – Per S. Ravindra Bhat,J. (Supplementing) – Since the Constitution itself makes distinctionbetween advocates on the one hand, and judicial officers, on theother, the argument of discrimination is insubstantial – Constitutionof India – Arts.14, 16 & 233.

Constitution of India – Arts. 124, 217, 233(2) – Eligibility ofjudicial officers to compete as against the post of District Judge byway of direct recruitment – Plea that practice as an advocate andservice as judicial officer for 10 years is to be treated at par asper explanation added to Arts. 124 & 217 – Held: In RameshwarDayal, this question has been considered and it was held thatArt.233(2) could not be interpreted in view of the explanations addedto Arts. 124 & 217.

Words & Phrases – “appointment”, “advocates”, “pleaders”– Meaning of – Discussed – Constitution of India – Art.233.

ABC

164SUPREME COURT REPORTS

AAnswering the reference, the CourtPER ARUN MISHRA, J. [FOR HIMSELFAND VINEETSARAN, J.]

HELD: 1.1 The Hindi translation of the Constitution signedby the members of the Constituent Assembly was published inB1950 under the authority of the President of the ConstituentAssembly. The translation of the Constitution shall be deemedto be the authoritative text thereof in the Hindi language.Considering the version in the Hindi language as well as in theEnglish language, the meaning is the same, and interpretationdoes not change. There is no room for any confusion that theyCare two different sources of appointment provided in Article 233.[Paras 9, 11][184-A, C-D]1.2 Article 233(1) provides for appointments by way ofposting and promotion. It is apparent from Article 233 that theappointing authority the Governor has to exercise the power ofDappointment in consultation with the High Court. The term‘appointment’ is broader and includes appointment by way ofdirect recruitment or by way of promotion, and sometimes it mayalso include, if so provided in the rules, by way of absorption.Article 233(2) starts with negative stipulation that personwho is not already in the service of the Union or the State, shallEbe eligible only to be appointed as District Judge if he has beenan advocate or pleader for not less than 7 years and isrecommended by the High Court for appointment. The expression‘in the service of the Union or of the State’ has been interpretedby this Court to mean the judicial service. person from judicialservice can be appointed as District Judge. However, ArticleF233(2) provides that person who is not in the service of theUnion, shall be eligible only if he has been in practice, as anadvocate or pleader for 7 years; meaning thereby, persons whoare in service are distinguished category from the incumbent whocan be appointed as District Judge on 7 years’ practice as anGadvocate or pleader. Article 233(2) nowhere provides eligibilityof in-service candidates for consideration as District Judgeconcerning post requiring 7 years’ practice as an advocate or apleader. Requirement of 7 years’ experience for advocate orpleader is qualified with rider that he should not be in the serviceof the Union or the State. Article 233 provides two sources ofHrecruitment, one from judicial service and the other from

advocates or pleaders. There are two separate streams provided;one is for persons in judicial service, and the other is for thosenot in judicial service of the Union or the State and have practicedfor seven years. The expression ‘in service of the Union or theState’ has been interpreted in Chandra Mohan to mean judicialservice, not any other service of the Union or the State. Thus, itis clear that the members of the judicial service alone are eligiblefor appointment as against the post of District Judge as the onlymode provided for the appointment of in-service candidates isby way of promotion. They can stake their claim as per rules forpromotion or merit promotion as the case may be. This Courthas excluded the persons from the Indian Civil Service, theProvincial Judicial Service, or other Executive Services, beforeIndependence, recruitment to the post of District Judge wasprovided from other services also. Article 233(2) provides that ifan advocate or pleader has to be appointed, he must havecompleted 7 years of practice. It is coupled with the condition inthe opening part that the person should not be in service of theUnion or State, which is the judicial service of the State. Theperson in judicial service is not eligible for being appointed asagainst the quota reserved for advocates. Once he has joinedthe stream of service, he ceases to be an advocate. Therequirement of 7 years of minimum experience has to beconsidered as the practising advocate as on the cut-off date, thephrase used is continuous state of affair from the past. Thecontext ‘has been in practice’ in which it has been used, it isapparent that the provisions refers to person who has been anadvocate or pleader not only on the cut-off date but continues tobe so at the time of appointment. [Paras 12-14][184-D-H;185-A-H]

Chandra Mohan v. State of Uttar Pradesh & Ors. [1967]1 SCR 77 : AIR 1966 SC 1987 – followed.

1.3 In-service candidates cannot apply as against the postreserved for the advocates/pleaders as he has to be in continuouspractice in the past and at the time when he has applied andappointed. Thus, the decision in Vijay Kumar Mishra cannot besaid to be laying down the law correctly. person in judicialservice is eligible to be appointed as District Judge, but it is onlyby way of promotion or by way of merit promotion, which concept

ABC

DEF

Ahas been evolved in All India Judges Association and Ors. v. Unionof India and Ors. (2002) 4 SCC 247. [Paras 24, 25][204-C-E]

Vijay Kumar Mishra & Anr. v. High Court of Judicatureat Patna & Ors. (2016) 9 SCC 313 : [2016] 3 SCR 806

– overruled.B

All India Judges’ Association v. Union of India (2002)4 SCC 247 : [2002] 2 SCR 712 – relied on.

1.4 It is apparent from the decision of All India JudgesAssociation that in order to prove the merit of in-servicecandidates, limited departmental competitive examination hasCalso been provided, so that they can take march to hold the postof District Judges on the basis of their merit. They are notdeprived of any opportunity in their pursuit once they have joinedthe judicial stream, they are bound to follow the provisions. Itwas open to them not to join the subordinate services. They couldDhave staked claim by continuing to be an advocate to the HigherJudicial 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 aredisentitled to lay claim to the 25% quota exclusively earmarkedfor Advocates; having regard to the dichotomy of different streamsEand separate quota for recruitment. However, when someonejoins particular stream, i.e. judicial service by his own volition,he cannot sail in two boats. His chance to occupy the post ofDistrict Judge would be by two-fold channel, either in the 50%seniority/merit quota, by promotion, or the quota for limitedFcompetitive examination. The recruitment from the Bar also hasa purpose behind it. The practicing advocates are recruited notonly in the higher judiciary but in the High Court and SupremeCourt as well. The members of the Bar also become experts intheir field and gain expertise and have the experience of appearingin various courts. The makers of the Constitution visualised andGthe law administered in the country for the last seven decadesclearly reveals that the aforesaid modes of recruitment and twoseparate sources, one from in-service and other from the Bar,are recognised. No room to entertain submission of discriminationbased on Articles 14 and 16. Article 233(2) starts with the negative

“not,” which disentitles the claim of judicial officers against thepost reserved for the practicing advocates/pleaders. [Paras 28-31][208-F-H; 209-A-G]

1.5 No benefit can be derived on the basis of certainobservations and suggestions made by the Law Commission asto what may happen in case All India Judicial Service is formed.The existing provisions are not restrictive but provide widerchoice to improve and strengthen the judicial system and in tunewith Articles 14 and 16. [Paras 36, 37][212-B-D]

1.6 In Rameshwar Dayal, this Court held that Article 233(2)could not be interpreted in view of the explanations added toArticles 124 and 217. There is no violation of equal opportunity.There is no violation of any principle of the Universal Declarationof Human Rights and the International Covenant on Civil andPolitical Rights and International Covenant on Economic, Socialand Cultural Rights. [Paras 42, 43][214-E; 215-G]

1.7 In service jurisprudence, it is always permissible toprovide different sources of recruitment and quotas along with aqualification. Equal opportunity is given, and seniority andcompetence are criteria for promotion, and in merit promotion,seniority is not to be considered. [Para 44][216-C]

1.8 The reference is answered as under :-

(i) The members in the judicial service of the State can beappointed as District Judges by way of promotion or limitedcompetitive examination.

(ii) The Governor of State is the authority for the purposeof appointment, promotion, posting and transfer, the eligibility isgoverned by the Rules framed under Articles 234 and 235.

(iii) Under Article 232(2), an Advocate or pleader with 7years of practice can be appointed as District Judge by way ofdirect recruitment in case he is not already in the judicial serviceof the Union or State.

(iv) For the purpose of Article 233(2), an Advocate has tobe continuing in practice for not less than 7 years as on the cut-

Aoff date and at the time of appointment as District Judge.Members of judicial service having 7 years’ experience ofpractice before they have joined the service or having combinedexperience of 7 years as lawyer and member of judiciary, are noteligible to apply for direct recruitment as District Judge.

B(v) The rules framed by the High Court prohibiting judicialservice officers from staking claim to the post of District Judgeagainst the posts reserved for Advocates by way of directrecruitment, cannot be said to be ultra vires and are in conformitywith Articles 14, 16 and 233 of the Constitution of India.

C(vi) The decision in Vijay Kumar Mishra providing eligibility,of judicial officer to compete as against the post of District Judgeby way of direct recruitment, cannot be said to be laying downthe law correctly. The same is hereby overruled.

In the cases where such in-service incumbents wereDappointed by way of direct recruitment from bar as no merit isfound in the petitions and due to dismissal of the writ petitionsfiled by the judicial officers, as sequel no fruits can be ripened onthe basis of selection without eligibility, they cannot continue asDistrict Judges. They have to be reverted to their original post.In case their right in channel for promotion had already beenEripened, and their juniors have been promoted, the High Courthas to consider their promotion in accordance with prevailingrules. However, they cannot claim any right on the basis of suchan appointment obtained under interim order, which was subjectto the outcome of the writ petition and they have to be reverted.F[Paras 47, 48][216-G-H; 217-A-H]

Rameshwar Dayal v. State of Punjab & Ors. AIR 1961SC 816:[1961] SCR 874 – followed.

Satya Narain Singh v. High Court of Judicature atAllahabad & Ors. (1985) 1 SCC 225 : [1985] 2 SCRG112; Deepak Aggarwal v. Keshav Kaushik & Ors.(2013) 5 SCC 277 : [2013] 1 SCR 402; Sushma Suri v.Govt. (NCT of Delhi), (1999) 1 SCC 330 : [1998] 2Suppl. SCR 187; All India Judges Association and Anr.v. Union of India (II) (2010) 15 SCC 170; P.

Ramakrishnam Raju v. Union of India and Ors. (2014)12 SCC 1 : [2014] 4 SCR 562; Government of NCT ofDelhi and Ors. v. All India Young Lawyers’ Associationand Anr. (2009) 14 SCC 49 : [2009] 3 SCR 555 – reliedon.

High Court of Punjab & Haryana v. State of Haryana(1975) 1 SCC 843 : [1975] 3 SCR 365; All India Judges’Association v. Union of India (2010) 15 SCC 170;Punjab & Haryana High Court v. State of Punjab(2018) SCC OnLine SC 1728; O.P. Garg v. State ofU.P. (1991) Supp. 2 SCC 51 : [1991] 2 SCR 424; TheState of Assam and Anr. v. Kuseswar Saikia and Ors.AIR 1970 SC 1616 : [1970] 2 SCR 928; All IndiaJudges’ Association v. Union of India and Ors. (1992)1 SCC 119 : [1991] 2 Suppl. SCR 206; All India Judges’Association and Ors. v. Union of India and Ors. (1998)8 SCC 771; Pandurangam Rao v. State of AndhraPradesh and Ors. AIR 1975 SC 1922 : [1976] 1 SCR620; Chandra Mohan v. State of U.P. and Ors. (II) AIR1976 SC 1482; Prof. Chandra Prakash Aggarwal v.Chaturbhuj Das Parikh and Ors. (1970) 1 SCC 182 :[1970] 3 SCR 354; State of Bihar and Ors. v. BalMukund Sah and Ors. (2000) 4 SCC 640 : [2000] 2SCR 299 – referred to.

The Construction of Statutes 202 (1940) by Crawford –referred to.

PER S. RAVINDRA BHAT, J. (SUPPLEMENTING)

HELD : 1.1 close reading of Article 233, other provisionsof the Constitution, and the judgments discloses the following:

(a) That the Governor of 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]);

(b) While so appointing the Governor is bound to consultthe High Court (Article 233 [1]: Chandra Mohan (supra) andChandramouleshwar Prasad v Patna High Court [1970] 2 SCR666);

A(c) Article 233 (1) cannot be construed as source ofappointment; it merely delineates as to who is the appointingauthority;

(d) In matters relating to initial posting, initial appointment,and promotion of District Judges, the Governor has the authorityBto issue the order; thereafter it is up to the High Court, by virtueof Article 235, to exercise control and superintendence over theconditions of service of such District Judges. (See State of Assamv Ranga Mahammad [1967] 1 SCR 454);

(e) Article 233 (2) is concerned only with eligibilityof thoseCwho can be considered for appointment as District Judge. TheConstitution clearly states that one who has been for not lessthan seven years, “an advocate or pleader” and one who is “notalready in the service of the Union or of the State” (in the sensethat such person is not holder of civil or executive post, underthe Union or of State) can be considered for appointment, as aDDistrict judge. Significantly, the eligibility- for both categories, iscouched in negative terms. Clearly, all that the Constitutionenvisioned was that an advocate with not less than seven years’practise could be appointed as District Judge, under Article233 (2).E(f) Significantly, Article 233 (2) ex facie does not excludejudicial officers from consideration for appointment to the post ofDistrict Judge. It, however, equally does not spell out any criteriafor such category of candidates. This does not mean however,that if they or any of them, had seven years’ practise in the past,Fcan be considered eligible, because no one amongst them can besaid to answer the description of candidate who “has been fornot less than seven years” “an advocate or pleader” (per DeepakAgarwal, i.e. that the applicant/candidate should be an advocatefulfilling the condition of practise on the date of the eligibilitycondition, or applying for the post). The sequitur clearly is that aGjudicial officer is not one who has been for not less than sevenyears, an advocate or pleader.

The net result of the decision in Chandra Mohan, andsubsequent decisions which followed it, is that Article 233 (2)renders ineligible all those who hold civil posts under State orH

the Union, just as it renders all advocates with less than sevenyears’ practice ineligible, on the date fixed for reckoningeligibility. Equally, those in judicial service [i.e. holders of postsother than District Judge, per Article 236 (2)] are not entitled toconsideration because the provision (Article 233 [2]) does notprescribe any eligibility condition. Does this mean that any judicialofficer, with any length of service as member of the judicialservice, is entitled to consideration under Article 233 (2)? Theanswer is clearly in the negative. This is because the negativephraseology through which eligibility of holders of civil posts, orthose in civil service (of the State or the Union) and advocateswith seven years’ service is couched. However, the eligibilityconditions are not spelt out in respect of those who are in thejudicial service. [Paras 24, 25][237-B-E; 238-A-D; 239-A-E]

1.2 The omission- in regard to spelling out the eligibilityconditions vis-à-vis judicial officers, to the post of District Judge,in the opinion of this court, is clearly by design. This subjectmatter is covered by three provisions: Article 233 (1) – whichrefers to promotionsto the post of District Judge; Article 234,which, like Article 233 (1) constitutes the Governor as theappointing authority in respect of judicial posts or services, (otherthan District Judges), and like Article 233 (1), subject torecommendation of the High Court concerned. This position ismost definitely brought home by the fact that Article 235 vests inthe High Courts the power of supervision and control of the judicialservice, “including the posting and promotion of, and the grant ofleave to, persons belonging to the judicial service of State andholding any post inferior to the post of district judge.” The corollaryto this is that the Governor is appointing authority for the post ofDistrict Judge, and other judicial posts; both are to be filled afterprior consultation with the High Court, and crucially, the promotionof judicial officers, to the post of District Judge, is regulated byconditions (read rules) framed by the High Court. TheConstitution makers clearly wished to draw distinction betweenthe two sources of appointment to the post of District Judge. Forone, i.e. Advocates, eligibility was spelt out in negativephraseology, i.e. not less than seven years’ practice; for judicialofficers, no eligibility condition was stipulated in Article 233 (2):this clearly meant that they were not eligible to be appointed (by

Adirect recruitment) as they did not and could not be consideredadvocates with seven years’ practise, once they entered thejudicial service. The only channel for their appointment, was inaccordance with rules framed by the High court, for promotion(as District Judges) of officers in the judicial service (defined asthose holding posts otherthan District Judges, per Article 236B[b]). [Paras 26, 27][239-E-H; 240-A-C]

1.3 The classification or distinction made- betweenadvocates and judicial officers, per se is constitutionallysanctioned one. This is clear from plain reading of Article 233itself. Firstly, Article 233 (1) talks of both appointments andCpromotions. Secondly, the classification is evident from thedescription of the two categories in Article 233 (2): one “notalready in the service of the Union or of the State” and the other “ifhe has been for not less than seven years as an advocate or apleader”. Both categories are to be “recommended by the HighDCourt for appointment.” The intent here was that in both cases,there were clear exclusions, i.e. advocates with less than sevenyears’ practice (which meant, conversely that those with morethan seven years’ practice were eligible) and those holding civilposts under the State or the Union. The omission of judicial officersonly meant that such of them, who were recommended forEpromotion, could be so appointed by the Governor. The conditionsfor their promotion were left exclusively to be framed by the HighCourts. Since the Constitution itself makes distinction betweenadvocates on the one hand, and judicial officers, on the other, theargument of discrimination is insubstantial. Even today, judicialFofficers are entitled to be considered for appointment, bypromotion, as District Judges, to the extent of 75% of the cadrerelating to that post, in every State. It is therefore, held that theexclusion- by the rules, from consideration of judicial officers, tothe post of District Judges, in the quota earmarked for Advocateswith the requisite standing, or practice, conforms to the mandateGof Articles 233-235, and the rules are valid. [Paras 30, 31][241-A-D, G-H]

1.4 This court is also of the opinion that if rules of any Statepermit judicial officers to compete in the quota for appointmentas District Judges, they are susceptible to challenge. The reasonH

for this conclusion is that where dichotomy is maintained, andtwo distinct sources for appointment are envisaged, like thepresent, enabling only judicial officers to compete in the quotaearmarked for advocates would potentially result in no one fromthe stream of advocates with seven or more years’ practice, beingselected. This would be contrary to the text and mandate of Article233 (2), which visualized that such category of candidates wouldalways be eligible and occupy the post of District Judge. Clearquotas for both sources have been earmarked by High Courts. Ifone those in one stream, or source- i.e. judicial officers- arepermitted to compete in the quota earmarked for the other (i.e.advocates) without the converse situation (i.e. advocatescompeting in the quota earmarked for judicial officers- animpossibility) the result would be rank discrimination. Anotherstrong reason drives us to this conclusion. The Constitutionmakers were aware that the judicial branch had to beindependent, and at the same time, reflect measure of diversityof thought, and approach. This is borne out by eligibility conditionsspelt out clearly in regard to appointments at every level of boththe lower and higher judiciary: the District court, the High Courtsand the Supreme Court. In regard to judicial positions in each ofthese institutions, the Constitution enables appointments, fromamongst members of the Bar, as its framers were acutelyconscious that practising advocates reflect independence and arelikely offer useful attribute, i.e. ability to think differently andhave novel approaches to interpretation of the laws and theConstitution, so essential for robustness of the judiciary, as wellas society as whole. This view is fortified by Article 217 (2),which spells out two sources from which appointments can beresorted to for the position of judge of High Court: firstly,member of judicial service of State [Article 217 (a)] and anadvocate with ten years’ experience [Article 217 (b)]. For theSupreme Court, Article 124 (3) (a) enables consideration of aperson with five years’ experience as High Court judge; Article124(3)(b) enables consideration of an advocate with ten years’experience at the bar in any High Court; Article 124(3)(c) enablesconsideration of distinguished jurist. Significantly, advocateswith stipulated experience at the bar are entitled, by expressprovisions of the Constitution [Articles 233 (2), Article 217 (b)

Aand Article 124 (3) (b)] to be considered for appointment to theDistrict Courts, High Courts and the Supreme Court, respectively.However, members of the judicial service can be considered onlyfor appointment (by promotion) as District Judges, and as HighCourt judges, respectively. Members of the judicial servicecannot be considered for appointment to the Supreme Court.BLikewise, academics or distinguished jurists, with neither practiseat the Bar, nor any experience in the judicial service, can beconsidered for appointment as District Judge, or as High Courtjudge. [Paras 32-34][242-A-H; 243-A-B]1.5 The Constitution makers, in the opinion of this court,Cconsciously wished that members of the Bar, should be consideredfor appointment at all three levels, i.e. as District judges, HighCourts and this court. This was because counsel practising inthe law courts have direct link with the people who need theirservices; their views about the functioning of the courts, is aDconstant dynamic. Members of the judicial service of any Statecannot claim to be appointed for vacancies in the cadre of DistrictJudge, in the quota earmarked for appointment from amongsteligible Advocates, under Article 233. The decision in Vijay KumarMishra, as far as it makes distinction between consideration, ofa candidate’s eligibility, at the stage of selection, and eligibilityEreckonable at the time of appointment, is incorrect. There is clearauthority to the proposition that eligibility of any candidate is tobe reckoned, not from the date of his or her selection, but interms of the rules, or the advertisement for the post. Therefore,the observation in Vijay Kumar Mishra that “the right of such

Fperson to participate in the selection process undertaken by the Statefor appointment to any post in public service (subject to other rationalprescriptions regarding the eligibility for participating in the selectionprocess such as age, educational qualification etc.) and beconsidered is guaranteed under Art. 14 and 16 of the Constitution”

is not correct. With respect, the distinction sought to be made,Gbetween “selection” and “appointment” in the context ofeligibility, is without foundation. Vijay Kumar Mishra, to the extentthat it is contrary to Ashok Kumar Sharma, as regards participationin the selection process, of candidates who are members of thejudicial service, for appointment to the post of District Judge,H

from amongst the quota earmarked for advocates with sevenyears’ practice, was wrongly decided. To that extent, Vijay KumarMishra is overruled. [Paras 35-37][243-C-G; 244-G-H;245-A, E]

Vijay Kumar Mishra & Anr. v. High Court of Judicatureat Patna & Ors. (2016) 9 SCC 313 : [2016] 3 SCR806 – overruled.

1.6 Under Article 233, judicial officer, regardless of heror his previous experience as an Advocate with seven years’practice cannot apply, and compete for appointment to any vacancyin the post of District Judge; her or his chance to occupy thatpost would be through promotion, in accordance with Rulesframed under Article 234 and proviso to Article 309 of theConstitution of India. [Para 38][245-F-G]

Chandra Mohan v. State of Uttar Pradesh & Ors. [1967]1 SCR 77 : AIR 1966 SC 1987; State of Assam andOrs. v. S.N. Sen & Ors [1972] 2 SCR 251 – followed.

Satya Narain Singh v. High Court of Judicature atAllahabad & Ors. (1985) 1 SCC 225 : [1985] 2 SCR112; Deepak Aggarwal v. Keshav Kaushik & Ors.(2013) 5 SCC 277 : [2013] 1 SCR 402; State of WestBengal v. Nripendra Nath Bagchi [1966] 1 SCR 771;High Court of Punjab and Haryana etc. v. State ofHaryana [1975] 3 SCR 365; ChandramouleshwarPrasad v. Patna High Court [1970] 2 SCR 666; Stateof Assam v. Ranga Mahammad [1967] 1 SCR 454;Ashok Kumar Sharma & Ors. v. Chander Shekhar &Ors (1997) 4 SCC 18 : [1997] 2 SCR 896 – relied on.

Rameshwar Dayal v. State of U.P. AIR 1961 SC 816 :[1961] SCR 874; Mahesh Chandra Gupta v. Union ofIndia and Ors. (2009) 8 SCC 273 : [2009] 10 SCR921 State of Haryana v. Inder Prakash Anand H.C.S.& Ors. [1976] 2 SCR 977; All India Judges’ Associationv. Union of India (2010) 15 SCC 170; U.P. PublicService Commission v Alpana (1994) 2 SCC 723 :[1994] 1 SCR 131; Bhupinderpal Singh & Ors. v. Stateof Punjab & Ors. (2000) 5 SCC 262 – referred to.

DHEERAJ MOR v. HON’BLE HIGH COURT OF DELHI

CIVIL APPELLATE/ORIGINAL/INHERENT JURISDICTION: Civil Appeal No. 1698 of 2020.

From the Judgment and Order dated 19.02.2015 of the High Courtof Delhi at New Delhi in Writ Petition (Civil) No. 9303 of 2014

With

Civil Appeal Nos. 1699, 1700, 1701, 1702, 1707, 1703, 1704, 1706,1705 of 2020.

Writ Petition (Civil) Nos. 77, 130, 405, 414, 423, 600, 598, 601,602, 733 of 2016, 189, 222, 316, 334, 371 of 2017, 96, 102, 103, 108, 110,106, 146, 123, 124, 138, 155, 145, 158, 174, 291, 287, 352, 387, 392, 396,530, 519, 535, 581, 578, 612, 629, 596, 616, 632, 608, 628, 617, 624, 631,635, 636, 641, 642, 639, 640, 650, 644, 658, 659, 680, 671, 677, 681, 686,703, 696, 717, 728, 726, 727, 1272, 1302 of 2018, 656, 744, 999, 1054,1053, 1080, 1073, 1089, 1086, 1150, 1266 of 2019, T.P. (C) No. 272 of2018, Contempt Petition (C) No. 1023 of 2019 in W.P. (C) No. 414 of2016.

A. N. S. Nadkarni, ASG, Ashish Kumar, AAG, Sunil Fernandes,AAG, MP, Ms. Vibha Dutta Makhija, Ms. Kiran Suri, P. V. Surendranath,

AA. Mariarputham, S. R. Singh, Pravin H. Parekh, Ms. Priya Hingorani,Shekhar Naphade, Jaideep Gupta, Dr. K. P. Kylasanatha Pillay, Ms.Anjana Prakash, R.Venkataramani, Ritin Raj, KTS Tulsi, Ajit Kr. Sinha,V. Giri, Rajiv Dutta, P. Ravindran, Purushaindra Kaurav, Jayant Bhushan,P.S. Patwalia, Sr. Advs., Santosh Kumar, Deepak Anand, Bharat Singh,Ms. Rashmi Malhotra, Ms. Prerna Kumari, M. K. Maroria, B. V.BBalram Das, Aishwarya Kumar, Ms. Resmitha R. Chandran, SawanKumar Shukla, Biju Joseph, Anan D. N. Rao, Venkatesh Rao, RahulMishra, Ms. Sangeeta M.R., Ms. Avni Sharma, Adarsh Upadhyay,Kshatrshal Raj, Ms. Tanya Chaudhary, Ms. Nitika Pandey, NikhilRamdev (for M/s. Parekh & Co.), Vivek Singh, Ashwani Kumar Dubey,CPankaj Sharma, Prashant Kumar Umrao, Sandeep Kr. Mishra, ChandraShekhar Mishra, Ashihsh Chaubey, Ms. S. Lakshmi Iyer, Ms. AishwaryaDash, D.K. Devesh, U.P. Singh, A.B. Singh, Piyush Upadhyay, KunalChatterji, Ms. Maitrayee Banerjee, Pradeep C., A. Venayagam Balan,Ms. V. S. Lakshmi, Zartab Anwar, P. Prabhakar, D. Srinivas, A.Venkateswara Rao, Aljo K. Joseph, Ms. Shelna K., Siddhartha Jha,DDeepak Goel, Ms. S. Janani, Kamal Kumar Pandey, Jitendra Kr. Yadav,Anurag Singh, Ms. Nikita Pandey (for M/s. Parekh & Co.), TGN Nair,Arjun Garg, S. Mahesh Sahasranaman, Anuradha Mishra, A.V. Rangam,B.A. Ranganadhan, Raunak Jain, Ketan Paul, Tushar Bhushan, AmartyaBhushan, Tushar Bakshi, Shovit Singh, Ms. Harshika Verma, AkshayEChadha, Dhruv Sheron, A. P. Mayee, Ms. Deepanwita Priyanka, A.Rajarajan, Himanshu Sharma, Ms. Aditi Sharma, Seeta Ram Sharma,Ram Niwas Sharma, Ms. Archana Pathak Dave, Manoj Goel, A. Kumar,Wajeeh Shafiq, Harish Pandey, Yunus Malik, Anish Maheshwari, Ms.Saroj Bala, Aman Malik, Samir Malik, Rohit K. Singh, Dushyant Kumar,T. V. George, Govind Narayan Kaushik, Ms. Neha Dutt Sharma, V.FSushant, Ram Naresh Yadav, Apoorv Kurup, Ms. Upama Bhatacharjee,Vijay Pratap Singh, Hitesh Kumar Sharma, Akhileshwar Jha, ManojShrivastava, Rakesh Kumar, Pankaj Kumar Mishra, Sanjay KumarDubey, Ms. Archana Mishra, Ms. Nupur Kumar, Zeeshan Diwan, PrastutDalvi, Rahul Kaushik, K. Parameshwar, M. V. Mukunda, G. Prakash,GJishnu M. L., Mrs. Priyanka Prakash, Mrs. Beena Prakash, Ms. UttaraBabbar, Ms. Bhavana Duhoon, Manan Bansal, Amol B. Karande,Ravindra H., Rahul Chitnis, Aaditya A. Pande, Sachin Patil, Ms. Nidhi,Vaisal Dathan, Arjun Garg, Devansh Srivastava, Rati Tandon, P.Prabhakar, D. Srinivas, Sanjeev Kumar, Anurag Dubey, Ms. ChhayaKumari, Bhupendra Kr. Bhardwaj, S.R. Setia, Fuzail Ahmad Ayyubi,Abdul Qadir, Ms. Aditi Gupta, Ankur Chhiber, R.C. Kaushik,Yashvardhan, Jagjit Singh Chhabra, Alok Kumar, Sadashiv, ShantanuKumar, Shakti Vardhan, Ajay Kr. Talesara, Himanshu Mehra, Ms.Vaishali Gupta, Abhishek Atrey, Ms. Vidyottma, Arvind Gupta, SameerKumar Tiwary, Mahesh Chaurasia, Sujit Kumar, Sanjeev Kumar Verma,Anil Kumar Sahu, Rakesh Kumar, Ajay Kumar Singh, Vinay Kumar,Ajay Bansal, Sanjay Kr. Visen, Mrs. Veena Bansal, Gaurav Yadava,Animesh Kumar, M. Kumar, Nishant Kumar, Ambuj Dixit, Ms. EktaBharti, Neeraj Shekhar, Yunus Malik, Anish Maheshwari, Ms. Khushali,MNA Chaudhary, G.N. Reddy, T. Vijay Bhaskar Reddy, Ms. DebjaniDas P., Rajiv Kataria (for M/s. Delhi Law Chambers), Shekhar GDevasa, Manish Tiwari, Luv Kumar (for M/s. Devasa & Co.), M.C.Dhingra, Anurag Shukla, Gaurav Dhingra, Kandra Indira, Abhishek,Ms. Deepthi Raj, Niraj Gupta, Ms. Anshu Gupta, Gaurav Kumar, Ms.Rachana Srivastava, Pankaj Kr. Mishra, Suchi Singh, Sanjay Kr. Yadav,Ashok Kumar, Devvrat, Rishabh Sancheti, Ms. Padma Priya, AnchitBhandari (for K. Paarivendhan), Amitanand Tiwari, Ashutosh Jha,Ashutosh Gupta, Sunil K. Jain, Ms. Anubha Agarwal, Anuj Prakash,Panshul Chandra, Ms. Aditi Kumar, K. Murli Manohar, Akhilesh Tripathy,Ms. Pooja, Ravi S. Jha, D.K. Tripathi, Shailesh Madiyal, Kartik Anand,Sudhanshu Prakash, Daya Krishan Sharma, Ravindra S. Garia, SubhasishBhowmick, Rajiv Ranjan Dwivedi, Abhishek, Ajay Pal, Pranab Prakash,Rajesh Srivastava, Sanjay Kumar Dubey, Neeraj Shekhar, Arvind Gupta,Shantanu Kumar, Niraj Gupta, Pankaj Kumar Mishra, Rakesh Kumar-I,Dr. Surender Singh Hooda, Amit K. Nain, Ajay Kumar Singh, SatishKumar, Devvrat, Ashwani Kumar Dubey, Gaurav, Venkateswara RaoAnumolu, Kunal Chatterji, Arjun Garg, V. N. Raghupathy, Ashok Mathur,Ardhendumauli Kumar Prasad, Rohit K. Singh, Gaurav Agrawal, SunnyChoudhary, Sunil Kumar Jain, Ms. Hemantika Wahi, Adarsh Upadhyay,Arvind Kumar Sharma, Guntur Prabhakar, John Mathew, Sanjay KumarTyagi, Vivek Singh, Mrigank Prabhakar, Krishna Kumar Singh, KumarDushyant Singh, Smarhar Singh, M. C. Dhingra, Advs, for the appearingparties.

[2020] 2 S.C.R.

APetitioner-in-person

The Judgments of the Court were delivered by

ARUN MISHRA, J.

1. Division Bench of this Court has referred the matters. TheBquestion involved in the matters is the interpretation of Article 233 of theConstitution of India as to the eligibility of members of the subordinatejudicial service for appointment as District Judge as against the quotareserved for the Bar by way of direct recruitment. The petitioners whoare in judicial service, have claimed that in case before joining judicialservice candidate has completed 7 years of practice as an advocate,Che/she shall be eligible to stake claim as against the direct recruitmentquota from the Bar notwithstanding that on the date of application/appointment, he or she is in judicial service of the Union or State. Yetanother category is that of the persons having completed only 7 years ofservice as judicial service. They contend that experience as judge beDtreated at par with the Bar service, and they should be permitted tostake their claim. The third category is hybrid, consisting of candidateswho have completed 7 years’ by combining the experience serving as ajudicial officer and as advocate. They claim to be eligible to stake theirclaim against the above quota.E2. The central argument advanced is that Article 233(2) providestwo sources of recruitment; one is from judicial service, and the other isfrom Bar. Thus, person in judicial service with experience of 7 yearspractice at the Bar, before joining service (or combined with service asa judicial officer), can stake claim under Article 233(2) as against theposts reserved for those having experience of 7 years as an advocate/Fpleader. Reliance has been placed on the decisions of this Court inRameshwar Dayal v. State of Punjab & Ors., AIR 1961 SC 816 andin Chandra Mohan v. State of Uttar Pradesh & Ors., (1967) 1 SCR77 = AIR 1966 SC 1987 to submit that under Article 233(2) there aretwo sources of direct recruitment to the higher judicial service; one fromthe Bar and the other from service. The decisions of Constitution BenchGin Chandra Mohan (supra) and Rameshwar Dayal (supra) are binding.The decision to the contrary in Satya Narain Singh v. High Court ofJudicature at Allahabad & Ors., (1985) 1 SCC 225 taking departurenegating the right of the member of the judicial service and confining thedirect recruitment from the Bar through practicing advocates effectivelyH

whittle down the law laid down in Chandra Mohan (supra) andRameshwar Dayal (supra).

3. It is argued that articles 233(1) and 233(2) inter alia deal withdirect recruitment, as is apparent from the Constitution Bench decisionof this Court in the High Court of Punjab & Haryana v. State ofHaryana, (1975) 1 SCC 843. The rules framed by various High Courtsdisqualifying the members of subordinate judicial service from directrecruitment to the higher judicial service are not in consonance with thelaw laid down in Chandra Mohan (supra) and Rameshwar Dayal(supra) and the provisions contained in Article 233. The rules, whichcompletely cut off one stream and provide only one stream of directrecruitment then the High Court’s rules would have to be declared ultravires being violative of Article 233. It was further submitted that therules framed by various High Courts arbitrarily discriminate betweenadvocates and the members of the judicial service in the matter of directrecruitment, the rules suffer from the vice of arbitrariness. It was alsosubmitted that the decision in All India Judges’ Association v. Unionof India, (2002) 4 SCC 247 has been rendered by Bench of threeJudges. The decision cannot overturn the two earlier Constitution Benchjudgments of this Court. In All India Judges’ Association case (supra),the Court proceeded on the basis that there was only one source ofdirect recruitment to the higher judicial service, which is violative of thedictum laid down by 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 thosewho apply within the quota. The quota system cannot override theconstitutional scheme of Article 233(1) and (2).

4. Reliance has also been placed on behalf of the petitioners uponthe decision in Vijay Kumar Mishra & Anr. v. High Court of Judicatureat Patna & Ors., (2016) 9 SCC 313 in which it has been held that thebar prescribed under Article 233(2) prohibits only the appointment ofpersons in service of Central/State Government and not their participationin the recruitment process. It is the constitutional right of such personsas 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 HighCourts as well as on behalf of the practicing advocates that Article 233(2)

Acontemplates direct recruitment only from the Bar and the person shouldnot be in judicial service for the post of direct recruitment. They canonly be promoted. By their volition they can join the subordinate judicialservice. Having done so, they can only be promoted to the higher judicialservice as provided in the rules. It was further submitted that the decisionsin Rameshwar Dayal (supra) and Chandra Mohan (supra) rather thanBespousing the submissions on behalf of in-service candidates, negate thesame. The decision in Satya Narain Singh (supra) has also consideredthe aforesaid decisions and has opined that there are two different streams,and the candidates from the judicial service cannot stake their claim asagainst the posts reserved for direct recruitment from the Bar. Similar isCthe law laid down by this Court in the case of Deepak Aggarwal v.Keshav Kaushik & Ors., (2013) 5 SCC 277. It was further submittedthat the decision in All India Judges Association (supra) has prescribeda quota for merit promotion from the in-service candidates and 25% ofthe quota for direct recruitment from the Bar. Also, the quota for limitedcompetitive examinations fixed was reduced to 10% in All India Judges’DAssociation v. Union of India, (2010) 15 SCC 170. It was furthersubmitted that there is separate quota provided under the rules framedby various High Courts, but now there is roster system as well. Rostersystem has also been made applicable for fixing the seniority of theincumbents recruited from in-service candidates as well as directly fromEthe Bar. In this regard reference has been made to the decision of thisCourt in Punjab & Haryana High Court v. State of Punjab, (2018)SCC OnLine SC 1728.

6. The main question for consideration is the interpretation ofArticle 233 of the Constitution of India, and based upon its interpretation,

Fthe question concerning the rules being ultra vires of the same has to beexamined. Rules of various High Courts, as existing preclude membersof the judicial service from staking their claim as against the posts reservedfor direct recruitment from the Bar. Article 233 is extracted hereunder:

“233.Appointment of district judges— (1) Appointments ofGpersons to be, and the posting and promotion of, district judges inany State shall be made by the Governor of the State in consultationwith the High Court exercising jurisdiction in relation to such State.

(2) person not already in the service of the Union or of theState shall only be eligible to be appointed district judge if he hasHbeen for not less than seven years an advocate or pleader and isrecommended by the High Court for appointment.”

7. The Hindi version of Article 233 has also been relied upon.The same is extracted hereunder:

^^v/;k; 6&v/khuLFk U;k;ky;

233- ftyk U;k;k/kh'kksa dh fu;qfDr & ¼1½ fdlh jkT; esa ftyk U;k;kèkh'kfu;qDr gksus okys O;fDr;ksa dh fu;qfDr rFkk ftyk U;k;k/kh'k dh inLFkkiukvkSj izkséfr ml jkT; dk jkT;iky ,sls jkT; ds laca/k esa vf/kdkfjrk dkiz;ksx djus okys mPp U;k;ky; ls ijke'kZ djsxkA

¼2½ og O;fDr] tks la?k dh ;k jkT; dh lsok esa igys ls gh ugha gS] ftykU;k;k/kh'k fu;qDr gksus ds fy, dsoy rHkh ik= gksxk tc og de ls delkr o"kZ rd vf/koDrk ;k IyhMj jgk gS vkSj mldh fu;qfDr ds fy,mPp U;k;ky; us flQkfj'k dh gSA**

8. It was submitted that Article 394A had been inserted by way ofthe Constitution (Fifty-eighth Amendment) Act, 1987. The same providesas under:

“394A. Authoritative text in the Hindi language.— (1) ThePresident 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 suchmodifications as may be necessary to bring it in conformitywith the language, style and terminology adopted in theauthoritative texts of Central Acts in the Hindi language, andincorporating therein all the amendments of this Constitutionmade before such publication; and

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

(2) The translation of this Constitution and of every amendmentthereof published under clause (1) shall be construed to have thesame meaning as the original thereof, and if any difficulty arisesin so construing any part of such translation, the President shallcause the same to be revised suitably.

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

A9. The Hindi translation of the Constitution signed by the membersof the Constituent Assembly was published in 1950 under the authorityof the President of the Constituent Assembly. The translation of theConstitution shall be deemed to be the authoritative text thereof in theHindi language.B10. Crawford in The Construction of Statutes, 202 (1940) hasalso been referred to, especially the following observations:

“In some jurisdictions statutes may be enacted in more than onelanguage. Where this is the situation, both texts constitute the lawand each must be considered in ascertaining the meaning of theClegislature.”

11. Considering the version in the Hindi language as well as in theEnglish language, the meaning is the same, and interpretation does notchange. There is no room for any confusion that they are two differentsources of appointment provided in Article 233.D

12. Article 233(1) provides for appointments by way of postingand promotion. It is apparent from Article 233 that the appointing authoritythe Governor has to exercise the power of appointment in consultationwith the High Court. The term ‘appointment’ is broader and includesappointment by way of direct recruitment or by way of promotion, andEsometimes it may also include, if so provided in the rules, by way ofabsorption.

13. Article 233(2) starts with negative stipulation that personwho is not already in the service of the Union or the State, shall beeligible only to be appointed as District Judge if he has been an advocateFor pleader for not less than 7 years and is recommended by the HighCourt for appointment. The expression ‘in the service of the Union or ofthe State’ has been interpreted by this Court to mean the judicial service.A person from judicial service can be appointed as District Judge.However, Article 233(2) provides that person who is not in the serviceof the Union, shall be eligible only if he has been in practice, as anGadvocate or pleader for 7 years; meaning thereby, persons who are inservice are distinguished category from the incumbent who can beappointed as District Judge on 7 years’ practice as an advocate or apleader. Article 233(2) nowhere provides eligibility of in-service candidatesfor consideration as District Judge concerning post requiring 7 years’practice as an advocate or pleader. Requirement of 7 years’ experienceHfor advocate or pleader is qualified with rider that he should not be inthe service of the Union or the State. Article 233 provides two sourcesof recruitment, one from judicial service and the other from advocatesor pleaders. There are two separate streams provided; one is for personsin judicial service, and the other is for those not in judicial service of theUnion or the State and have practiced for seven years. The expression‘in service of the Union or the State’ has been interpreted in ChandraMohan (supra) to mean judicial service, not any other service of theUnion or the State. Thus, it is clear that the members of the judicialservice alone are eligible for appointment as against the post of DistrictJudge as the only mode provided for the appointment of in-servicecandidates is by way of promotion. They can stake their claim as perrules for promotion or merit promotion as the case may be. This Courthas excluded the persons from the Indian Civil Service, the ProvincialJudicial Service, or other Executive Services, before Independence,recruitment to the post of District Judge was provided from other servicesalso. In Chandra Mohan (supra), this Court held that no person fromthe Executive Service can be promoted as District Judge. There isseparation of the judiciary in terms of Article 50 of the Constitution ofIndia. It mandates the State to take steps to separate the judiciary fromthe Executive in the public services of the State. Article 50 is extractedhereunder:

“50. Separation of judiciary from executive. — The Stateshall take steps to separate the judiciary from the executive in thepublic services of the State.”

14. Article 233(2) provides that if an advocate or pleader has tobe appointed, he must have completed 7 years of practice. It is coupledwith the condition in the opening part that the person should not be inservice 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 againstthe quota reserved for advocates. Once he has joined the stream ofservice, he ceases to be an advocate. The requirement of 7 years ofminimum experience has to be considered as the practising advocate ason the cut-off date, the phrase used is continuous state of affair fromthe past. The context ‘has been in practice’ in which it has been used, itis apparent that the provisions refers to person who has been an advocateor pleader not only on the cut-off date but continues to be so at the timeof appointment.

A15. Reliance has been placed on Chandra Mohan v. State ofU.P., (supra) by both the sides, facts of which reflect that AllahabadHigh Court called for applications for recruitment to 10 vacancies in theUttar Pradesh Higher Judicial Service from Barristers, Advocates, Vakilsand pleaders of more than 7 years’ standing and from judicial officers.Six incumbents were selected - three advocates and three judicial officers.BThe Selection Committee sent two lists, one comprising the names ofthe three advocates and the other comprising the names of three judicialofficers to the High Court. There was agreement that the selection fromthe Bar was good. The question arose about the legality of theappointment of judicial officers. The question arose was whether theCincumbents who were not members of the judicial service could havebeen appointed as District Judges under Rule 14. This Court while strikingdown the Rules interpreted Article 233 thus:

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

“Appointments of persons to be, and the posting and promotionof, district judges in any State shall be made by the Governorof the State in consultation with the High Court exercisingjurisdiction in relation to such State.”

We are assuming for the purpose of these appeals that theE“Governor” under Art. 233 shall act on the advice of the Ministers.So, the expression “Governor” used in the judgment meansGovernor acting on the advice of the Ministers. The constitutionalmandate is clear. The exercise of the power of appointment bythe Governor is conditioned by his consultation with the High Court,Fthat is to say, he can only appoint person to the post of districtjudge in consultation with the High Court. The object of consultationis apparent. The High Court is expected to know better than theGovernor in regard to the suitability or otherwise of person,belonging either to the “judicial service” or to the Bar, to beappointed as district judge. Therefore, duty is enjoined on theGGovernor to make the appointment in consultation with bodywhich is the appropriate authority to give advice to him. Thismandate can be disobeyed by the Governor in two ways, namely,(i) by not consulting the High Court at all, and (ii) by consultingthe High Court and also other persons. In one case he directlyinfringes the mandate of the Constitution and in the other he

indirectly does so, for his mind may be influenced by other personsnot entitled to advise him. That this constitutional mandate hasboth negative and positive significance is made clear by theother provisions of the Constitution. Wherever the Constitutionintended to provide more than one consultant, it has said so: seeArts. 124(2) and 217(1). Wherever the Constitution provided forconsultation of single body or individual it said so: see Art.222. Art. 124(2) goes further and makes distinction betweenpersons who shall be consulted and persons who may be consulted.These provisions indicate that the duty to consult is so integratedwith the exercise of the power that the power can be exercisedonly in consultation with the person or persons designated therein.To state it differently, if is empowered to appoint in consultationwith C, he will not be exercising the power in the mannerprescribed if he appoints in consultation with and D.”

This Court in Chandra Mohan v. State of U.P. (supra) alsoobserved, concerning recruitment from the Bar under Article 233(2),the Governor can appoint only advocates recommended by the HighCourt to the judicial service. This Court has held:

“11. The position in the case of district judges recruited directlyfrom the Bar is worse. Under Art. 233(2) of the Constitution, theGovernor can only appoint advocates recommended by the HighCourt to the said service. But under the Rules, the High Courtcan either endorse the recommendations of the Committee orcreate deadlock. The relevant rules, therefore, clearly contravenethe constitutional mandates of Art. 233(1) and (2) of theConstitution and are, therefore, illegal.”

(emphasis supplied)

16. Rule 14 of U.P. Rules which came up for consideration of thisCourt in Chandra Mohan (supra) is extracted hereunder:

“Rule 14. Direct Recruitment.-(1) Applications for directrecruitment to the service shall be called for by the Court andshall be made in the prescribed form which may be obtained fromthe 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 legal practitioner, and such otherdocuments as may be prescribed in this behalf by the Court.Applications from Judicial Officers should be submitted inaccordance with the rules referred to in clause 2(b) of rule 5 ofthese Rules. The District Judge or other officer through whomthe application is submitted shall send to the Court, along with theapplication, his own estimate of the applicant’s character andfitness for appointment to the service.”

17. After having answered the question about recruitment fromCthe Bar, the further question considered in Chandra Mohan(supra) was whether the Governor could directly appoint personsfrom service other than judicial service as District Judges inconsultation with the High Court. They belonged to the executivebranch of the Government and performed certain revenue andDministerial functions. This Court took note of the fact that in thepre-Independence era, there was demand that the judiciaryshould be separated from the Executive, and that was based uponthe assumption that unless they were separated, independence ofthe judiciary at the lower level would be mockery. Thus, ArticleE50 of Directive Principles of State Policy provides that States totake steps to separate judiciary from the executive in publicservices of the State. There shall be separate judicial service fromthe executive service. This Court considered the provisions ofArticles 234, 235, 236 and 237 and observed that there are twoFsources of recruitment, services of the Union or State and membersof the Bar. This Court observed thus:

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

We have already extracted Art. 233.

Article 234. Appointments of persons other than district judgesto the judicial service of State shall be made by the Governorof the State in accordance with rules made by him in that behalf

after consultation with the State Public Service Commissionand with the High Court exercising jurisdiction in relation tosuch State.

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

Article 236. In this Chapter-

(a) the expression “district judge” includes judges of citycivil court, additional district judge, joint district judge, assistantdistrict judge, chief judge of small cause court, chiefpresidency magistrate, additional chief presidency magistrate,sessions judge, additional sessions judge and assistant sessionsjudge:

(b) the expression “judicial service” means service consistingexclusively of persons intended to fill the post of district judgeand other civil judicial posts inferior to the post of district judge.

Article 237. The Governor may by public notification directthat the foregoing provisions of this Chapter and any rules madethereunder shall with effect from such date as may be fixedby him in that behalf apply in relation to any class or classes ofmagistrates in the State as they apply in relation to personsappointed to the judicial service of the State subject to suchexceptions and modifications as may be specified in thenotification.

The gist of the said provisions may be stated thus: Appointmentsof persons to be, and the posting and promotion of, district judgesin any State shall be made by the Governor of the State. Thereare two sources of recruitment, namely, (i) service of the Unionor of the State, and (ii) members of the Bar. The said judges from

Athe first source are appointed in consultation with the High Courtand those from the second source are appointed on therecommendation of the High Court.But in the case of appointmentsof persons to the judicial service other than as district judges theywill be made by the Governor of the State in accordance withrules framed by him in consultation with the High Court and theBPublic Service Commission. But the High Court has control overall the district courts and courts subordinate thereto, subject tocertain prescribed limitations.”

(emphasis supplied)

CAs to the question whether persons from other services can beappointed 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 theDquestion whether the Governor can appoint as district judgespersons from services other than the judicial service; that is tosay, can he appoint person who is in the police, excise, revenueor such other service as district judge? The acceptance of thisposition would take us back to the pre-independence days andthat too to the conditions prevailing in the Princely States. In theEPrincely States one used to come across appointments to thejudicial service from police and other departments. This wouldalso cut across the well-knit scheme of the Constitution and theprinciple underlying it, namely, the judiciary shall be an independentservice. Doubtless if Art. 233(1) stood alone, it may be arguedFthat the Governor may appoint any person as district judge,whether legally qualified or not, if he belongs to any service underthe State. But Art. 233(l) is nothing more than declaration ofthe general power of the Governor in the matter of appointmentof district judges. It does not lay down the qualifications of thecandidates to be appointed or denote the sources from which theGrecruitment has to be made. But the sources of recruitment areindicated in cl. (2) thereof. Under cl. (2) of Art. 233 two sourcesare given, namely, (i) persons in the service of the Union or of theState, and(ii) advocate or pleader. Can it be said that in the contextof Ch. VI of Part VI of the Constitution “the service of the UnionHor of the State” means any service of the Union or of the State ordoes it mean the judicial service of the Union or of the State? Thesetting, viz., the chapter dealing with subordinate courts, in whichthe expression “the service” appears indicates that the servicementioned therein is the service pertaining to courts. Thatapart, Art. 236(2) defines the expression “judicial service” to meana service consisting exclusively of persons intended to fill the postof district judge and other civil judicial posts inferior to the post ofdistrict judge. If this definition, instead of appearing in Art. 236, isplaced as clause before Art. 233(2), there cannot be any disputethat “the service” in Art. 233(2) can only mean the judicial service.The circumstance that the definition of “judicial service” finds aplace in subsequent Article does not necessarily lead to contraryconclusion. The fact that in Article 233(2) the expression “theservice” is used whereas in Arts. 234 and 235 the expression“judicial service” is found is not decisive of the question whetherthe expression “the service” in Art. 233(2) must be somethingother than the judicial service, for, the entire chapter is dealingwith the judicial service. The definition is exhaustive of the service.Two expressions in the definition bring out the idea that the judicialservice consists of hierarchy of judicial officers starting from thelowest and ending with district judges. The expressions“exclusively” and “intended” emphasise the fact that the judicialservice consists only of persons intended to fill up the posts ofdistrict judges and other civil judicial posts and that is the exclusiveservice of judicial officers.Having defined “judicial service” inexclusive terms, having provided for appointments to that serviceand having entrusted the control of the said service to the care ofthe High Court, the makers of the Constitution would not haveconferred blanket power on the Governor to appoint any personfrom any service as district judge.

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 furthernoted the history that the Governor-General in Council had issued anotification in 1922 empowering the local Government to makeappointments to the said service from the members of the ProvincialCivil Service (Judicial Branch) or the members of the Bar. This Court

Ahad also noted that earlier till India attained Independence, the Governor-General 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 wasdiscontinued by the Government of India, and it was decided that themembers of the newly created Indian Administrative Service would notBbe given judicial posts. Thereafter District Judges were appointed onlyfrom either the judicial service or from the Bar. The rules framed by theGovernor empowering him to recruit District Judges from the judicialofficers were held to be unconstitutional. This Court has observed thus:“20. The history of the said provisions also supports the saidCconclusion. Originally the posts of district and sessions judges andadditional sessions judges were filled by persons from the IndianCivil Service. In 1922 the Governor-General-in-Council issued anotification empowering the local government to makeappointments to the said service from the members of theDProvincial Civil Service (Judicial Branch) or from the membersof the Bar. In exercise of the powers conferred under S. 246(1)and S. 251 of the Government of India Act, 1935, the Secretaryof State for India Framed rules styled Reserved Posts (IndianCivil Service) Rules, 1938. Under those Rules, the Governor wasgiven the power to appoint to district post member of theEjudicial service of the Province or member of the Bar. ThoughS. 254(1) of the said Act was couched in general terms similar tothose contained in Art. 233(1) of the Constitution, the said rulesdid not empower him to appoint to the reserved post of districtjudge person belonging to service other than the judicial service.FTill India attained independence, the position was that district judgeswere 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 newlyGcreated Indian Administrative Service would not be given judicialposts. Thereafter district judges have been recruited only fromeither the judicial service or from the Bar. There was no case ofa member of the executive having been promoted as districtjudge. If that was the factual position at the time the ConstitutionHcame into force, it is unreasonable to attribute to the makers of

the Constitution, who had so carefully provided for theindependence of the judiciary, an intention to destroy the same byan indirect method. What can be more deleterious to the goodname of the judiciary than to permit at the level of district judges,recruitment from the executive departments? Therefore, the historyof 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 bythe Governor empowering him to recruit district judges from the“judicial officers” are unconstitutional and, therefore, for thatreason also the appointment of respondents 5, 6 and 7 was bad.

(23) In the result, we hold that the U.P. Higher Judicial ServiceRules providing for the recruitment of district judges areconstitutionally void and, therefore, the appointments madethereunder were illegal. We set aside the order of the High Courtand issue writ of mandamus to the 1st respondent not to makeany appointment by direct recruitment to the U.P. Higher JudicialService in pursuance of the selections made under the said Rules.The 1[st] respondent will pay the costs of the appellant. The otherrespondents will bear their own costs.”

(emphasis supplied)

19. It is apparent from the decision in Chandra Mohan v. Stateof U.P., (supra) that this Court has laid down that concerning DistrictJudges recruited directly from the Bar, Governor can appoint onlyadvocates recommended by the High Court and Rule 14 which providedfor judicial officers to be appointed as direct recruits was struck downby this Court to be ultra vires. Thus, the decision is squarely against thesubmission espoused on behalf of in-service candidates. In theabovementioned para 11 of Chandra Mohan (supra), the position ismade clear. In Chandra Mohan (supra) the Court held that onlyadvocates can be appointed as direct recruits, and inter alia the Rule 14providing for executive officers’ recruitment was struck down. This Courthas held that the expression ‘service of State or Union’ means judicialservice, it only refers to the source of recruitment. Dichotomy of twosources of recruitment/appointment has been culled out in the decision.20. Reliance has also been placed on the decision in RameshwarDayal v. State of U.P., AIR 1961 SC 816. The question which arose for

Aconsideration there was as to the eligibility of persons on the roll ofadvocates of East Punjab High Court before the partition of India in1947 for appointment as District Judge. This Court held that the periodof practice before Lahore High Court could be counted as against therequired period of 7 years for appointment as District Judge. This Courtlaid down that practice rendered in or before the Lahore High CourtBbefore partition was not open to objection under Article 233(2) of theConstitution. Even if the word ‘advocate’ in clause (2) of Article 233meant an advocate of court in India, and the appointee must be suchan advocate at the time of his appointment, no objection can be raised onthis ground because being factually on the roll of Advocates of theCPunjab High Court at the time of appointment, the candidate wasadmittedly an advocate in court in India and continued as such till thedate of his appointment. This Court also considered the principle appliedto the East Punjab High Court. An advocate of the Lahore High Courtwas entitled to practice in the new High Court counted his seniority onthe strength of his standing in the Lahore High Court. It was held that aDperson who continued as advocate at the time of his appointment asDistrict Judge fulfilled the requirement of Article 233. Emphasis waslaid by this Court that such practice was recognised under clause 6 ofthe High Court of Punjab Order, 1947. Earlier, the High Court used tomaintain the rolls of advocates. The question which arose forEconsideration was whether respondent Nos.2 to 6 fulfilled therequirements of having been 7 years an advocate or pleader. Thesubmission made was that practice rendered outside the territory of Indiacannot be counted as practice for counting 7 years. This Court interpretedArticle 233 distinguishing it from Article 124 and Article 217 and heldthat under clause (1), the Government can appoint such person who isFalready in the service of the Union or State. No special qualificationswere prescribed under clause (1) of Article 233. The Governor canappoint such person as District Judge. However, as to person notalready in service, the qualification prescribed in Article 233 is that heshould be an advocate or pleader of 7 years’ standing. This CourtGanswered the question thus:

“11. This is the background against which we have to considerthe argument of learned counsel for the appellant. Even if weassume without finally pronouncing on their correctness thatlearned counsel is right in his first two submissions viz. that theHword “advocate” in clause (2) of Art. 233 means an advocate of

court in India and the appointee must be such an advocate atthe time of his appointment, no objection on those grounds can beraised to the appointment of three of the respondents who werefactually on the roll of Advocates of the Punjab High Court at thetime of their appointment; because admittedly they were advocatesin court in India and continued as such advocates till the datesof their appointment. The only question with regard to them iswhether they can count in the period of seven years their periodof practice in or under the Lahore High Court. The answer to thisquestion 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 HighCourt of East Punjab shall be regulated in accordance with theprinciple in force in the Lahore High Court immediately beforethe appointed day. The relevant rule in the Lahore High CourtRules laid down that Advocates who are Barristers shall takeprecedence inter se according to the date of call to the Bar;Advocates who are not Barristers, according to the dates whenthey became entitled to practice in High Court. The sameprinciple applied to the East Punjab High Court, and an advocateof the Lahore High Court who was recognised as an advocateentitled to practise in the new High Court counted his seniority onthe strength of his standing in the Lahore High Court. He did notlose that seniority, which was preserved by the Bar Councils Act,1926, and we see no reasons why for the purpose of cl. (2) ofArt. 233 such an advocate should not have the same standing ashe has in the High Court where he is practising.

12. Learned counsel for the appellant has also drawn our attentionto Explanation I to cl. (3) of Art. 124 of the Constitution relating tothe qualifications for appointment as Judge of the Supreme Courtand to the explanation to cl. (2) of Art. 217 relating to thequalifications for appointment as Judge of High Court, andhas submitted that where the Constitution makers thought itnecessary they specifically provided for counting the period in aHigh Court which was formerly in India. Articles 124 and 217 aredifferently worded and refer to an additional qualification ofcitizenship which is not requirement of Art. 233, and we do notthink that cl. (2) of Art. 233 can be interpreted in the light ofexplanations added to Arts. 124 and 217. Article 233 is self

contained provision regarding the appointment of District Judges.As to person who is already in the service of the Union or of theState, no special qualifications are laid down and under cl. (1) theGovernor can appoint such person as district judge inconsultation with the relevant High Court. As to person notalready in service, qualification is laid down in cl. (2) and all thatis required is that he should be an advocate or pleader of sevenyears’ standing.The clause does not say how that standing mustbe reckoned and if an Advocate of the Punjab High Court is entitledto count the period of his practice in the Lahore High Court fordetermining his standing at the Bar, we see nothing in Art. 233which must lead to the exclusion of that period for determining hiseligibility for appointment as district judge.

13. What will be the result if the interpretation canvassed for onbehalf of the appellant is accepted? Then, for seven years beginningfrom August 15, 1947, no member of the Bar of the Punjab HighCourt would be eligible for appointment as district judge — aresult which has only to be stated to demonstrate the weaknessof the argument. We have proceeded so far on the first twosubmissions of learned counsel for the appellant, and on that basisdealt with his third submission. It is perhaps necessary to add thatwe must not be understood to have decided that the expression

‘has been’ must always mean what learned counsel for theappellant says it means according to the strict rules of grammar.It may be seriously questioned if an organic Constitution must beso narrowly interpreted, and the learned Additional Solicitor-General has drawn our attention to other Articles of theFConstitution like Art. 5(c) where in the context the expression hasa different meaning. Our attention has also been drawn to thedecision of the Allahabad High Court in Mubarak Mazdoor v.K.K. Banerji, AIR 1958 All 323, where different meaning wasgiven to similar expression occurring in the proviso to sub-sec.(3) of S. 86 of the Representation of the People Act, 1951. WeGconsider it unnecessary to pursue this matter further because therespondents we are now considering continued to be advocatesof the Punjab High Court when they were appointed as districtjudges and they had standing of more than seven years when soappointed. They were clearly eligible for appointment under cl. 2Hof Art. 233 of the Constitution.

14. We now turn to the other two respondents (Harbans Singhand P.R. Sawhney) whose names were not factually on the rollof Advocates at the time they were appointed as district judges.What is their position? We consider that they also fulfilled therequirements of Art. 233 of the Constitution. Harbans Singh wasin service of the State at the time of his appointment, and MrViswanantha Sastri appearing for him has submitted that cl. (2)of Art. 233 did not apply. We consider that even if we proceed onthe footing that both these persons were recruited from the Barand their appointment has to be tested by the requirements ofcl.(2), we must hold that they fulfilled those requirements. Theywere Advocates enrolled in the Lahore High Court; this is notdisputed. Under Cl. 6 of the High Courts (Punjab) Order, 1947,they were recognised as Advocates entitled to practise in thePunjab 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 toprepare and maintain roll of advocates in which their namesshould have been entered on the day on which S. 8 came intoforce, that is, on September 28, 1948. The proviso to sub-sec. (2)of S.8 required them to deposit fee of Rs 10 payable to the BarCouncil. Obviously such payment could hardly be made beforethe Bar Council was constituted. We do not agree with learnedcounsel for the appellant and the interveners (B.D. Pathak andOm Dutt Sharma) that the proviso had the effect of taking awaythe right which these respondents had to come automatically onthe roll of advocates under S. 8(2)(a) of the Act. We considerthat the combined effect of Cl. 6 of the High Courts (Punjab)Order, 1947, and S. 8(2)(a) of the Bar Councils Act, 1926, wasthis: from August 15, 1947, to September 28,1948, they wererecognised as Advocates entitled to practise in the Punjab HighCourt and after September 28, 1948, they automatically came onthe roll of advocates of the Punjab High Court but had to pay afee of Rs 10 to the Bar Council. They did not cease to be advocatesat any time or stage after August 15, 1947, and they continued tobe advocates of the Punjab High Court till they were appointed asDistrict Judges. They also had the necessary standing of sevenyears 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 HarbansSingh and P.R. Sawhney in the decision of Rameshwar Dayal (supra).Harbans Singh and P.R. Sawhney were having the followingqualifications as noted in the judgment:

“5. x x xB

(2) Respondent 3 (Harbans Singh, J.) was also called to the Barand then enrolled as an Advocate of the Lahore High Court onMarch 5, 1937. He worked as an Additional District and SessionsJudge, Ferozepore, from July 2, 1947, to February 22, 1948. Hethen returned to practice at Simla for short while. On March 15,C1948, he worked as Deputy Custodian, Evacuee Property, till April17, 1950. On April 18, 1950, he was appointed as District andSessions Judge and on August 11, 1958, he was appointed as anAdditional Judge of the Punjab High Court.

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

Two of them were not in judicial service as on the date of theirFappointment; they had practised earlier for the requisite period asadvocates and later were appointed as District & Sessions Judge.Harbans Singh was working as Deputy Custodian, Evacuee Property till1950, when he was appointed as District & Sessions Judge. In 1958, hewas appointed as an Additional Judge of the Punjab High Court. At theGrelevant time, when the appointments were made, recruitments werepermissible from executive services too. Their eligibility to be appointedas District & Sessions Judge was tested. The question which came upfor consideration was not whether they could have been appointed beingin service of Custodian of Evacuee Property or the Improvement Trust.What was held by this Court concerning interpretation of Article 233 inHthe abovementioned para 12 of Rameshwar Dayal (supra), by

Constitution Bench of Court, goes squarely against the submissions raisedon behalf of the in-service candidates.

22. In Satya Narain Singh (supra), similar question arose. Themembers of Uttar Pradesh Judicial Service applied for appointment byway of direct recruitment to the Uttar Pradesh Higher Judicial Serviceclaiming that they had completed 7 years of practice at the Bar beforetheir appointment to the Uttar Pradesh Judicial Service. Therefore, theywere eligible to be appointed by direct recruitment to the Higher JudicialService, i.e., to the post of District Judge. It was submitted that it wouldbe extremely anomalous to interpret Article 233 in way to render judicialofficers eligible for appointment as District Judge by direct recruitment.This Court rejected the submission and observed thus:“3. …Two points straightway project themselves when the twoclauses 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 confinedin its application to persons “not already in the service of the Unionor of the State”. We may mention here that “service of the Unionor of the State” has been interpreted by this Court to mean JudicialService. Again while the first clause makes consultation by theGovernor of the State with the High Court necessary, the secondclause requires that the High Court must recommend personfor appointment as District Judge. It is only in respect of thepersons covered by the second clause that there is requirementthat person shall be eligible for appointment as District Judge ifhe has been an advocate or pleader for not less than 7 years. Inother words, in the case of candidates who are not members of aJudicial Service they must have been advocates or pleaders fornot less than 7 years and they have to be recommended by theHigh Court before they may be appointed as District Judges, whilein the case of candidates who are members of Judicial Servicethe 7 years’ rule has no application but there has to be consultationwith the High Court.A clear distinction is made between the twosources of recruitment and the dichotomy is maintained. The twostreams are separate until they come together by appointment.Obviously the same ship cannot sail both the streamssimultaneously.”

(emphasis supplied)

AThis Court has relied upon Rameshwar Dayal (supra) andChandra Mohan (supra) to hold:

“5. Posing the question whether the expression “the service ofthe Union or of the State” meant any service of the Union or ofthe State or whether it meant the Judicial Service of the Union orBof the State, the learned Chief Justice emphatically held that theexpression “the service” in Article 233(2) could only mean theJudicial Service. But he did not mean by the above statement thatpersons who are already in the service, on the recommendationby the High Court can be appointed as District Judges, overlookingthe claims of all other seniors in the Subordinate Judiciary contraryCto Article 14 and Article 16 of the Constitution.

6. Thus we see that the two decisions do not support the contentionadvanced on behalf of the petitioners but, to the extent that theygo, they certainly advance the case of the respondents. Wetherefore, see no reason to depart from the view already taken byDus and we accordingly dismiss the writ petitions.”

(emphasis supplied)

The cases of Harbans Singh and Sawhney were consideredand explained in the aforesaid decision. This Court relied upon the decisionEof Rameshwar Dayal (supra) to hold that as to person not already in-service, qualification is that he should be an advocate or pleader ofseven years’ standing. The same clinches the issue against in-servicecandidates and negates their claim therefor.

23. In Deepak Aggarwal (supra) three-Judge Bench of thisFCourt considered the provisions of Article 233(2) and held that servicein Article 233 to mean judicial service and there is dichotomy of sourcesof recruitment, namely, (i) from judicial service; and (ii) from the advocate/pleader or in other words from the Bar. The meaning of the termadvocate/pleader too has been considered by this Court. The expression“advocate” or “pleader” refers to the members of the Bar practicingGlaw. Relying upon Sushma Suri v. Govt. (NCT of Delhi), (1999) 1 SCC330, this Court further observed that members of the Bar meant classesof persons who were practicing in court of law as pleaders or advocates.This Court further held that in Article 233(2), “if he has been for not lessthan seven years,” the present perfect continuous tense is used for aposition which began at some time in the past and is continuing. Therefore,Hone of the essential requirements is that such person must with requisiteperiod be continuing as an advocate on the date of application. ThisCourt has observed:

“70. few decisions rendered by some of the High Courts on thepoint may also be noticed here. In Sudhakar GovindraoDeshpande v. State of Maharashtra, 1986 Lab IC 710 (Bom)the issue that fell for consideration before the Bombay High Courtwas whether the petitioner therein who was serving as DeputyRegistrar at the Nagpur Bench of the Bombay High Court, waseligible for appointment to the post of the District Judge. Theadvertisement that was issued by the High Court invitingapplications for five posts of District Judges, inter alia, stated that,“candidate must ordinarily be an advocate or pleader who haspractised in the High Court, Bombay or court subordinate theretofor not less than seven years on 1-10-1980”. The Single Judge ofthe Bombay High Courtconsidered Articles 233, 234 and 309 ofthe Constitution, relevant recruitment rules and noted the judgmentsof this Court in Chandra Mohan v. State of U.P., AIR 1966 SC1987, Satya Narain Singh v. High Court of Judicature ofAllahabad, (1985) 1 SCC 225 and Rameshwar Dayal v. Stateof Punjab, AIR 1961 SC 816. It was observed as follows:(Sudhakar case, Lab IC p. 715, para 16)

“16. … the phrase ‘has been an advocate or pleader’ mustbe interpreted as person who has been immediately prior tohis appointment member of the Bar, that is to say either anadvocate or pleader. In fact, in the above judgment, theSupreme Court has repeatedly referred to the second group ofpersons eligible for appointment under Article 233(2) as‘members of the Bar’. Article 233(2) therefore, when it refersto person who has been for not less than seven years anadvocate or pleader refers to 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 theexpression “advocate or pleader” in Article 233(2) of theConstitution. This should bear the meaning it had in law precedingthe Constitution and as the expression was generally understood.The expression “advocate or pleader” refers to legal practitionerand, thus, it means person who has right to act and/or plead in

Acourt on behalf of his client. There is no indication in the contextto the contrary. It refers to the members of the Bar practisinglaw. In other words, the expression “advocate or pleader” in Article233(2) has been used for member of the Bar who conductscases in court or, in other words acts and/or pleads in court onbehalf of his client. In Sushma Suri v. Govt. (NCT of Delhi),B-(1999) 1 SCC 330, threeJudge Bench of this Court construedthe expression “members of the Bar” to mean class of personswho were actually practising in courts of law as pleaders oradvocates. …

102. As regards construction of the expression, “if he has beenCfor not less than seven years an advocate” in Article 233(2) ofthe Constitution, we think Mr Prashant Bhushan was right in hissubmission that this expression means seven years as an advocateimmediately preceding the application and not seven years anytime in the past. This is clear by use of “has been”. The presentDperfect continuous tense is used for position which began atsometime in the past and is still continuing. Therefore, one of theessential requirements articulated by the above expression inArticle 233(2) is that such person must with requisite period becontinuing as an advocate on the date of application.”

(emphasis supplied)

It is clear from the decision of Deepak Aggarwal (supra) thatrecruitment from the Bar is only from among practicing advocates andthose continuing as advocates on the date of appointment. The submissionthat the issue of eligibility of in-service candidates did not come up forFconsideration is of no consequence as provisions of Article 233(2) cameup for consideration directly before this Court.

24. The decision of Vijay Kumar Mishra and Anr. v. High Courtof Judicature at Patna and Ors., (2016) 9 SCC 313, has also beenreferred in which judicial officers staked their claim as against the postGreserved for the members of the Bar i.e., advocates/pleaders. The HighCourt repelled the challenge; hence appeal was filed in this Court. Atwo-Judge Bench of this Court observed that person who is not inservice shall be eligible to be appointed as District Judge. After that,the bench distinguished between “selection” and “appointment.” It wasobserved that Article 233(2) prohibits the appointment of person whoHis already in service of the Union or the State, but not selection of such

person. Even if person, who is already in service, is selected, still hehas an option to be District Judge or continue with the existingemployment. The relevant portion of the observations made is extractedhereunder:

“6. Article 233(1) stipulates that appointment of District Judgesbe made by the Governor of the State in consultation with theHigh Court exercising jurisdiction in relation to such State.However, Article 233(2) declares that only person not alreadyin the service of either the Union or of the State shall be eligible tobe appointed as District Judge. The said Article is couched innegative language creating bar for the appointment of certainclass of persons described therein. It does not prescribe anyqualification. It only prescribes disqualification.

7. It is well settled in service law that there is distinction betweenselection and appointment. Every person who is successful in theselection process undertaken by the State for the purpose of fillingup of certain posts under the State does not acquire any right tobe appointed automatically. Textually, Article 233(2) only prohibitsthe appointment of person who is already in the service of theUnion or the State, but not the selection of such person. Theright of such person to participate in the selection processundertaken by the State for appointment to any post in publicservice (subject to other rational prescriptions regarding theeligibility for participating in the selection process such as age,educational qualification, etc.) and be considered is guaranteedunder Articles 14 and 16 of the Constitution.

8. The text of Article 233(2) only prohibits the appointment of aperson as District Judge, if such person is already in the serviceof either the Union or the State. It does not prohibit theconsideration of the candidature of person who is in the serviceof the Union or the State. person who is in the service of eitherthe Union or the State would still have the option, if selected, tojoin the service as District Judge or continue with his existingemployment. Compelling person to resign from his job even forthe purpose of assessing his suitability for appointment as DistrictJudge, in our opinion, is not permitted either by the text of Article233(2) nor contemplated under the scheme of the Constitution asit would not serve any constitutionally desirable purpose.

A11. It appears from the reading of the judgment in Satya NarainSingh v. High Court of Judicature of Allahabad, (1985) 1 SCC225, that the case of the petitioners was that their claims forappointment to the post of District Judges be considered underthe category of members of the Bar who had completed sevenyears of practice ignoring the fact that they were already in theBJudicial Service. The said fact operates as bar undoubtedly underArticle 233(2) for their appointment to the Higher Judicial Service.It is in this context this Court rejected their claim. The questionwhether at what stage the bar comes into operation was not inissue before the Court nor did this Court go into that question.”C

We find ourselves unable to agree with the proposition laid downin Vijay Kumar Mishra (supra). In our opinion, in-service candidatescannot apply as against the post reserved for the advocates/pleaders ashe has to be in continuous practice in the past and at the time when hehas applied and appointed. Thus, the decision in Vijay Kumar MishraD(supra) cannot be said to be laying down the law correctly.

25. person in judicial service is eligible to be appointed as DistrictJudge, but it is only by way of promotion or by way of merit promotion,which concept has been evolved in All India Judges Association andOrs. v. Union of India and Ors., (2002) 4 SCC 247, in whichErecommendations of the Shetty Commission were considered by thisCourt as to the method of recruitment to the post of the cadre of HigherJudicial Service – District Judges and Additional District Judges. ThisCourt took note of the fact that at that moment, there were two sourcesfor recruitment to the Higher Judicial Service, namely, (i) by promotion;and (ii) by direct recruitment. In order to strengthen the lower judiciaryFand to make them more efficient, the establishment of Judicial Academieswas suggested. This Court approved the recommendations of ShettyCommission that the recruitment to the Higher Judicial Service, i.e., theDistrict Judge cadre from amongst the advocates should be 25 percentand the process of recruitment should be by competitive examinationGincluding both written and viva voce tests. 75 percent should be by wayof promotion and 25 percent by direct recruitment. This Court furtherordered that 50 percent of the total post in the Higher Judicial Servicesmust be filled by promotion on the basis of principle of merit-cum-seniorityand 25 percent of the posts in the service shall be filled by promotionstrictly on the basis of merit through the limited departmental competitiveH

examination for which the qualifying service as Civil Judge (SeniorDivision) should be not less than five years. The High Courts were directedto frame rules in this regard. This Court also held that quota in relationto the post is necessary, which is the basic principle on the basis ofwhich the 40-point roster works, it was held, seniority should bemaintained on the basis of the roster principle. The existing seniorityhad to be protected, but the roster was to be evolved for the future. ThisCourt observed thus:“27. Another question which falls for consideration is the methodof recruitment to the posts in the cadre of Higher Judicial Servicei.e. District Judges and Additional District Judges. At the presentmoment, there are two sources for recruitment to the HigherJudicial Service, namely, by promotion from amongst the membersof the Subordinate Judicial Service and by direct recruitment. Thesubordinate judiciary is the foundation of the edifice of the judicialsystem. It is, therefore, imperative, like any other foundation, thatit should become as strong as possible. The weight on the judicialsystem essentially rests on the subordinate judiciary. While wehave accepted the recommendation of the Shetty Commissionwhich will result in the increase in the pay scales of the subordinatejudiciary, it is at the same time necessary that the judicial officers,hard-working as they are, become more efficient. It is imperativethat they keep abreast of knowledge of law and the latestpronouncements, and it is for this reason that the ShettyCommission has recommended the establishment of JudicialAcademy, which is very necessary. At the same time, we are ofthe opinion that there has to be certain minimum standard,objectively adjudged, for officers who are to enter the HigherJudicial Service as Additional District Judges and District Judges.While we agree with the Shetty Commission that the recruitmentto the Higher Judicial Service i.e. the District Judge cadre fromamongst the advocates should be 25 per cent and the process ofrecruitment is to be by competitive examination, both writtenand viva voce, we are of the opinion that there should be anobjective method of testing the suitability of the subordinate judicialofficers for promotion to the Higher Judicial Service. Furthermore,there should also be an incentive amongst the relatively junior andother officers to improve and to compete with each other so as toexcel and get quicker promotion. In this way, we expect that the

Acalibre of the members of the Higher Judicial Service will furtherimprove. In order to achieve this, while the ratio of 75 per centappointment by promotion and 25 per cent by direct recruitmentto the Higher Judicial Service is maintained, we are, however, ofthe opinion that there should be two methods as far as appointmentby promotion is concerned: 50 per cent of the total posts in theBHigher Judicial Service must be filled by promotion on the basisof principle of merit-cum-seniority. For this purpose, the HighCourts should devise and evolve test in order to ascertain andexamine the legal knowledge of those candidates and to assesstheir continued efficiency with adequate knowledge of case-law.CThe remaining 25 per cent of the posts in the service shall befilled by promotion strictly on the basis of merit through the limiteddepartmental competitive examination for which the qualifyingservice as Civil Judge (Senior Division) should be not less thanfive years. The High Courts will have to frame rule in this regard.D28. As result of the aforesaid, to recapitulate, we direct thatrecruitment to the Higher Judicial Service i.e. the cadre of District Judgeswill be:

(1)(a) 50 per cent by promotion from amongst the Civil Judges(Senior Division) on the basis of principle of merit-cum-seniorityEand passing suitability test;

(b) 25 per cent by promotion strictly on the basis of merit throughlimited 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 recruitmentFfrom amongst the eligible advocates on the basis of the writtenand viva voce test conducted by respective High Courts.

(2) Appropriate rules shall be framed as above by the High Courtsas early as possible.

29. Experience has shown that there has been constantdiscontentment amongst the members of the Higher JudicialService in regard to their seniority in service. For over threedecades large number of cases have been instituted in order todecide the relative seniority from the officers recruited from the

two different sources, namely, promotees and direct recruits. Asa result of the decision today, there will, in way, be three waysof recruitment to the Higher Judicial Service. The quota forpromotion which we have prescribed is 50 per cent by followingthe principle “merit-cum-seniority”, 25 per cent strictly on meritby limited departmental competitive examination and 25 per centby direct recruitment. Experience has also shown that the leastamount of litigation in the country, where quota system inrecruitment exists, insofar as seniority is concerned, is where aroster system is followed. For example, there is, as per the rulesof the Central Government, 40-point roster which has beenprescribed which deals with the quotas for Scheduled Castes andScheduled Tribes. Hardly, if ever, there has been litigationamongst the members of the service after their recruitment asper the quotas, the seniority is fixed by the roster points andirrespective of the fact as to when person is recruited. Whenroster system is followed, there is no question of any dispute arising.The 40-point roster has been considered and approved by thisCourt in R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745.One of the methods of avoiding any litigation and bringing aboutcertainty in this regard is by specifying quotas in relation to postsand not in relation to the vacancies. This is the basic principle onthe basis of which the 40-point roster works. We direct the HighCourts to suitably amend and promulgate seniority rules on thebasis of the roster principle as approved by this Court in R.K.Sabharwal case as early as possible. We hope that as resultthereof there would be no further dispute in the fixation of seniority.It is obvious that this system can only apply prospectively exceptwhere under the relevant rules seniority is to be determined onthe basis of quota and rotational system. The existing relativeseniority of the members of the Higher Judicial Service has to beprotected but the roster has to be evolved for the future.Appropriate rules and methods will be adopted by the High Courtsand approved by the States, wherever necessary by 31-3-2003.”

(emphasis supplied)

It is apparent from the aforesaid decision that 25 percent of theposts in the cadre of District Judge have to be filled by direct recruitmentamongst the advocates based on competitive examination, both written

Aand viva voce. The decision is in tune with the various decisions of thisCourt such as Rameshwar Dayal, Chandra Mohan, Satya NarainSingh and Deepak Aggarwal (supra). The direction issued by thisCourt of 25 percent of the post to be filled by limited departmentalcompetitive examination has been reduced to 10 percent by this Court inAll India Judges Association and Anr. v. Union of India (II), (2010)B15 SCC 170.

26. Reliance has been placed on O.P. Garg v. State of U.P., 1991Supp. (2) SCC 51, wherein question was of fixation of seniority. ThisCourt has observed that there should be equal opportunity to enter theservice for all the sources of recruitment. If recruitment rules giveCunwarranted preference to one source, the seniority rule is bound tobecome unworkable. Therefore, there should be equality of opportunityto all the sources.

27. In Punjab and Haryana High Court v. State of Punjab,2018 SCC OnLine SC 1728 [Civil Appeal Nos.5518-5523 of 2017 decidedDon 3.10.2018] the question which arose was with respect to inter seseniority dispute between three streams of Punjab Superior JudicialService, i.e., 50 percent by promotion based on merit-cum-seniority, 25percent by limited departmental competitive examination and remaining25 percent to be filled by direct recruitment from amongst eligibleEadvocates. The facts indicate that the All India Judges Association(2002) decision had been implemented, and seniority is being maintainedas directed.

28. It is apparent from the decision of All India JudgesAssociation that in order to prove the merit of in-service candidates, aFlimited departmental competitive examination has also been provided, sothat they can take march to hold the post of District Judges on the basisof their merit. They are not deprived of any opportunity in their pursuitonce they have joined the judicial stream, they are bound to follow theprovisions. It was open to them not to join the subordinate services.They could have staked claim by continuing to be an advocate to theGHigher Judicial Service as against the post of District Judge. However,once they chose to be in service, if they had seven years’ experience atBar before joining the judicial service, they are disentitled to lay claimto the 25% quota exclusively earmarked for Advocates; having regardto the dichotomy of different streams and separate quota for recruitment.HOpportunities are provided not only to in-service candidates but also to

practicing candidates by the Constitutional Scheme to excel and to achievewhat they aspire i.e. appointment as District Judge. However, whensomeone joins particular stream, i.e. judicial service by his own volition,he cannot sail in two boats. His chance to occupy the post of DistrictJudge would be by two-fold channel, either in the 50% seniority/meritquota, by promotion, or the quota for limited competitive examination.

29. The recruitment from the Bar also has purpose behind it.The practicing advocates are recruited not only in the higher judiciarybut in the High Court and Supreme Court as well. There is stream (ofappointment) for in-service candidates of higher judiciary in the HighCourt and another stream clearly earmarked for the Bar. The membersof the Bar also become experts in their field and gain expertise and havethe experience of appearing in various courts. Thus, not only in the higherjudiciary, in-service candidates of subordinate judiciary are given theopportunity as against 75 percent to be appointed by way of promotionas provided in All India Judges Association case, and the members ofthe Bar are given the opportunity as against 25 percent of the post having7 years’ standing at Bar.

30. The makers of the Constitution visualised and the lawadministered in the country for the last seven decades clearly revealsthat the aforesaid modes of recruitment and two separate sources, onefrom in-service and other from the Bar, are recognised. We do not findeven single decision supporting the cause espoused on behalf ofcandidates, who are in judicial service, to stake their claim as against theposts reserved for advocates/pleaders. In all the cases right from beginningfrom Rameshwar Dayal (supra) to date, dichotomy has beenmaintained, and we find absolutely no room to entertain submission ofdiscrimination based on Articles 14 and 16.31. We are not impressed by the submission that when this Courthas interpreted the meaning of service in Article 233(2) to mean judicialservice, judicial officers are eligible as against the posts reserved for theadvocates/pleaders. Article 233(2) starts with the negative “not,” whichdisentitles the claim of judicial officers against the post reserved for thepracticing advocates/pleaders. They can be promoted to that post as perthe rules; this Court has further laid down wider horizon to in-servicecandidates in the All India Judges Association as against the 75 percentof the post by including merit promotion. The argument that merit shouldprevail and they should be given due opportunity under the rules to prove

Atheir merit and to excel, in our opinion, cannot prevail. Such judicialofficer cannot claim merit in violation of the provisions of rules framedunder Article 234 of the Constitution. The two classes are different. Interms of the prevalent rules in-service candidates lack eligibility. Theycannot contend that they are discriminated against and their merit isignored and overlooked.B

32. Consistently, this Court in its previous judgments has takenthe view which we now take. We find absolutely no reason to take adifferent view, though it was urged that mistakes committed earlier shouldnot continue. We find the argument to be devoid of substance and basedupon misapprehensions. We have found that the aforesaid decisions areCvivid and clear, and there is no room to entertain such submission thenfor moment. Even otherwise, when the law has been administered inthis country after Independence in the manner mentioned above on theprinciple of stare decisis and rules framed by various High Courts, wefind ourselves unable to accept the submission raised on behalf of in-Dservice 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 the provisions of Article233. We unhesitatingly reject the submission to the contrary.

33. It was submitted that promotion is no substitute for directErecruitment, as against the post reserved for direct recruitment, anincumbent can apply throughout India, whereas an in-service candidatecan be promoted within the State, and there is no definite period forcoming into the zone of consideration for promotion in Higher JudicialService. Thus, it was urged that direct recruitment is altogether differentfrom promotion and having practiced for 7 years, they have basic eligibilityFto stake their claim for the post reserved for advocates/pleaders, andthey have additional experience of acting as judge also. We find noroom to accept the submissions. Once the Constitution envisages separatesources of recruitment, no case can be made out of deprivation of theopportunity. Once service is joined, one has to go by the service rules,Gand it was open to such an incumbent to practice and stake claim invarious States while remaining in practice. It is matter of two differentstreams for recruitment which is permissible, such an argument cannotbe accepted.

34. In P. Ramakrishnam Raju v. Union of India and Ors., (2014)H12 SCC 1, this Court has observed that experience and knowledge gained

by successful lawyer at the Bar can never be considered to be lessimportant from any point of view vis-à-vis the experience gained by ajudicial officer. If service of judicial officer is counted for fixation ofpension, there is no valid reason as to why the experience at the Barcannot be treated as equivalent for the same purpose. In Governmentof NCT of Delhi and Ors. v. All India Young Lawyers’ Associationand Anr., (2009) 14 SCC 49, this Court has directed that certain numberof years as an advocate to be added to the judicial service for pension.Thus, in our opinion, experience as an advocate is also important, andthey cannot be deprived of their quota, which is kept at 25 percent onlyin the Higher Judicial Service.35. It was submitted that ultimately the appointment of the Barmember is also made under Article 233(1). In The State of Assam andAnr. v. Kuseswar Saikia and Ors., AIR 1970 SC 1616, this Courtobserved that both appointment and promotion are included in Article233(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 learnedChief Justice seems to think that the expression “promotion of”governs “District Judges” ignoring the comma that follows theword “of”. The article, if suitably expanded, reads as under:

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

It means that appointment as well as promotion of persons tobe District Judges is matter for the Governor in consultationwith the High Court and the expression “District Judge” includesan additional District Judge and an Additional Sessions Judge. Itmust be remembered that District Judges may be directly appointedor may be promoted from the subordinate ranks of the judiciary.The article is intended to take care of both. It concerns initialappointment and initial promotion of persons to be either DistrictJudges or any of the categories included in it. ….”

The decision is of no avail as the question in the present case isdifferent. Though the appointment is made under Article 233(1), but thesource and the channel for judicial officers is the promotion, and for themembers of the Bar is by direct recruitment.

A36. The 116[th] Report of Law Commission on All India JudicialServices published in November 1986 has been referred to, whichobserved that chances of promotion of the subordinate ranks will beproportionately reduced to the extent direct recruitment is made. TheLaw Commission was not considering the provisions of Article 233 buthad made certain observations, and there is no formation of the All IndiaBJudicial Service so far what would be the provisions when it is constituted,will have to be considered when they are formulated. Thus, no benefitcan be derived on the basis of certain observations and suggestions madeby the Law Commission as to what may happen in case All India JudicialService is formed.C

37. Certain recommendations of the Shetty Commission have beenreferred to, but after their consideration in the All India Judges’Association case, there is no scope for considering the provisions of theConstitution to provide eligibility for in-service candidates for directrecruitment for the post of District Judge. The existing provisions areDnot restrictive but provide wider choice to improve and strengthen thejudicial 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 whichfollowing observations have been made:

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

“If we are to improve the personnel of the subordinatejudiciary, we must first take measures to extend or widen ourFfield of selection so that we can draw from it really capablepersons. radical measure suggested to us was to recruit thejudicial service entirely by competitive test or examination. Itwas suggested that the higher judiciary could be drawn fromsuch competitive tests at the all-India level and the lowerGjudiciary can be recruited by similar tests held at State level.Those eligible for these tests would be graduates who havetaken law degree and the requirement of practice at the barshould be done away with.

Such scheme, it was urged, would result in bringinginto the subordinate judiciary capable young men who now

prefer to obtain immediate remunerative employment in theexecutive branch of government and in private commercialfirms. The scheme, it was pointed out, would bring to the highersubordinate judiciary the best talent available in the country asa whole, whereas the lower subordinate judiciary would bedrawn from the best talent available in the State.

further recommendation was made for the formation of the AllIndia Judicial Service. The suggestion was made that practice at Bar forinduction at the lower level should be done away with. Be that as it may.Theprescription of the practice period of 3 years, has been changedtime to time, but the facts remain that when it comes to the eligibility andrecruitment from the Bar to the post of District Judge, practicingadvocates from the Bar can be inducted by way of direct recruitment asagainst the quota fixed for them. The question involved in the matter isnot whether the practice is necessary to join the subordinate judiciary.

39. In All India Judges’ Association and Ors. v. Union of Indiaand Ors., (1998) 8 SCC 771, this Court has considered the question ofpermitting the Legal Assistants working in different institutions otherthan the courts for the purpose of appointments in the judiciary. ThisCourt observed that Legal Assistants do not get experience and exposure,which is important for manning judicial posts. The observations madeare extracted hereunder:

“1. The question of permitting the Legal Assistants working indifferent institutions other than the courts for the purpose ofappointments on the ground that they should be treated as havingexperience at the Bar cannot be entertained. The Legal Assistantsworking in different institutions and bodies do not get theexperience and exposure which is important for the purpose ofmanning judicial posts, and it is not possible to lay down guidelineson the basis of few appearances but what is important is notmere appearance but actual intimate knowledge and associationwith the system itself. We, therefore, reject the applications.”

40. The decision in A. Pandurangam Rao v. State of AndhraPradesh and Ors., AIR 1975 SC 1922, has been referred to, in whichquestion arose as to the appointment of District Judges by directrecruitment from the Bar. The Court held that candidate for direct

Arecruitment from the Bar does not become eligible for the appointmentof District Judges in any State without the recommendation of the HighCourt. The final authority is the Government in the matter of appointment.There is no dispute with the aforesaid proposition, the decision alsoindicates that direct recruitment is from the Bar. Obviously, theappointment has to be made by the Government. The decision ratherBthan supporting defeats the cause espoused on behalf of in-servicecandidates.

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 questionarose of seniority only. This Court has taken note that Rules 8, 13, 14,C15, 17, and 19 of the U.P. Higher Judicial Service Rules (1953) wereheld to be unconstitutional as offending Article 233. The question aroseof determining seniority in accordance with Rule 20. The decision is notan authority on the question of interpretation of Article 233 but wasrather fallout of Chandra Mohan-I (supra).D

42. It was also submitted that practice as an advocate and serviceas judicial officer for 10 years is to be treated at par as per explanationadded to Articles 124 and 217 of the Constitution of India. In RameshwarDayal (supra), this question has been considered, and this Court heldthat Article 233(2) could not be interpreted in view of the explanationsEadded to Articles 124 and 217. In Satya Narain Singh (supra) theaforesaid decision has been considered, and following observations havebeen made:

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

“We consider that even if we proceed on the footing that boththese persons were recruited from the Bar and their appointmenthas to be tested by the requirements of clause (2), we musthold that they fulfilled those requirements.”

Clearly, the Court was expressing the view that it was in the caseGof recruitment from the Bar, as distinguished from Judicial Service,that the requirements of Clause (2) had to be fulfilled. We mayalso add here earlier the Court also expressed the view:

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

Reliance placed on Prof. Chandra Prakash Aggarwal v.Chaturbhuj Das Parikh and Ors., (1970) 1 SCC 182, dealing with theinterpretation of Article 217, is of no avail.

43. The argument has been raised with respect to the violation ofbasic human rights. The findings of the Advisory Panel on JudicialDiversity in the U.K. in 2010 have been referred to as under:

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

23. Inherent in the concept of human equality is the principle thattalent is randomly and widely distributed in society, and notconcentrated in particular racial or other groups. It thereforefollows that the more widely one searches for talent, the morelikely it is that the best candidates will be identified.

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

24. The current under-representation of certain well-qualifiedgroups within the judiciary suggests that factors other than puretalent may be influencing either people’s willingness to apply orthe selection process, or both.”

We find that there is no violation of equal opportunity. There is awide search for talent for inducting in the judicial service as well as indirect recruitment from Bar, and the best candidates are identified andrecruited. Persons from unusual places are also given the opportunity tostake 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 observedthat onerous duty is cast on the High Court under the ConstitutionalScheme. It has been given prime and paramount position in the matterwith the necessity of choosing the best available talent for manning thesubordinate judiciary. Thus, we find that there is no violation of anyprinciple of the Universal Declaration of Human Rights and theInternational Covenant on Civil and Political Rights and InternationalCovenant on Economic, Social and Cultural Rights.

A44. Article 2 of the Universal Declaration of Human Rights hasalso been relied upon, which provides thus:

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

The aim of our Constitution is also the same, and there is noviolation of any of human rights. The submission is far-fetched. In servicejurisprudence, it is always permissible to provide different sources ofrecruitment and quotas along with qualification. Equal opportunity isCgiven, and seniority and competence are criteria for promotion, and inmerit promotion, seniority is not to be considered.

45. In view of the aforesaid discussion, we are of the opinion thatfor direct recruitment as District Judge as against the quota fixed for theadvocates/pleaders, incumbent has to be practicing advocate and mustDbe in practice as on the cut-off date and at the time of appointment hemust not be in judicial service or other services of the Union or State.For constituting experience of 7 years of practice as advocate, experienceobtained in judicial service cannot be equated/combined and advocate/pleader should be in practice in the immediate past for 7 years and mustbe in practice while applying on the cut-off date fixed under the rulesEand should be in practice as an advocate on the date of appointment.The purpose is recruitment from bar of practicing advocate havingminimum 7 years’ experience.

46. In view of the aforesaid interpretation of Article 233, we findthat rules debarring judicial officers from staking their claim as againstFthe posts reserved for direct recruitment from bar are not ultra vires asrules 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 beappointed as District Judges by way of promotion or limited competitiveGexamination.

(ii) The Governor of State is the authority for the purpose ofappointment, promotion, posting and transfer, the eligibility is governedby the Rules framed under Articles 234 and 235.

(iii) Under Article 232(2), an Advocate or pleader with 7 yearsof practice can be appointed as District Judge by way of direct recruitmentin case he is not already in the judicial service of the Union or State.

(iv) For the purpose of Article 233(2), an Advocate has to becontinuing in practice for not less than 7 years as on the cut-off date andat the time of appointment as District Judge. Members of judicial servicehaving 7 years’ experience of practice before they have joined the serviceor having combined experience of 7 years as lawyer and member ofjudiciary, are not eligible to apply for direct recruitment as DistrictJudge.

(v) The rules framed by the High Court prohibiting judicial serviceofficers from staking claim to the post of District Judge against the postsreserved for Advocates by way of direct recruitment, cannot be said tobe ultra vires and are in conformity with Articles 14, 16 and 233 of theConstitution of India.

(vi) The decision in Vijay Kumar Mishra (supra) providingeligibility, of judicial officer to compete as against the post of DistrictJudge by way of direct recruitment, cannot be said to be laying down thelaw correctly. The same is hereby overruled.

48. In the case of Dheeraj Mor and others cases, time to timeinterim orders have been passed by this Court, and incumbents in judicialservice were permitted to appear in the examination. Though later on,this Court vacated the said interim orders, by that time certainappointments had been made in some of the States and in some of theStates results have been withheld by the High Court owing to complicationwhich has arisen due to participation of the ineligible in-service candidatesas against the post reserved for the practising advocates. In the caseswhere such in-service incumbents have been appointed by way of directrecruitment from bar as we find no merit in the petitions and due todismissal of the writ petitions filed by the judicial officers, as sequel nofruits can be ripened on the basis of selection without eligibility, theycannot continue as District Judges. They have to be reverted to theiroriginal post. In case their right in channel for promotion had alreadybeen ripened, and their juniors have been promoted, the High Court hasto consider their promotion in accordance with prevailing rules. However,they cannot claim any right on the basis of such an appointment obtainedunder interim order, which was subject to the outcome of the writ petitionand they have to be reverted.

A49. The civil appeals, writ petitions, Transfer Petition and contemptpetition are, accordingly, disposed of. No order as to costs.

S. RAVINDRA BHAT, J.

B1. I have gone through the draft judgment proposed by the ArunMishra, J. I agree with his analysis; however, I have given additionalreasoning as well in respect of the issue involved. Therefore, I amsupplementing with my separate opinion.

2. This judgment answers reference made to the present threeCjudge bench. The referral order[1] noticed several previous decisions ofthis court (in Rameshwar Dayal v. The State of Punjab & Ors. 1961(2) SCR 874; Chandra Mohan v. The State of Uttar Pradesh andOrs. (1967) 1 SCR 77; Satya Naraian Singh v High Court ofJudicature 1985 (2) SCR 112; Deepak Aggarwal v Keshav Kaushik2013 (5) SCC 277 and felt that the observations in judgment, VijayDKumar Mishra & Anr v. High Court of Judicature at Patna & Others(2016) 9 SCC 313, necessitated re-consideration on the issue as to theeligibility of judicial officers, of any State, to apply for selection andappointment to the quota earmarked to be filled by Advocates with sevenyears’ practice.

E3. The controversy in these petitions is whether officers in thejudicial 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 oneFgroup, non-judicial service] of various States. Broadly, they fall in threecategories: those selected to judicial service without any, or with lessthan seven years’ experience at the Bar; those who had seven years’experience at the Bar, before appointment to the judicial service; andthose with seven years or more experience at the Bar, but are workingin non-judicial posts. Those with seven years’ experience, prior to theirGappointment falling in the second and third categories mentioned above,argue that the Constitution does not preclude them from participating inthe process of recruitment for District Judges, in the 25% Advocates’

H1 Order dated 23-01-2018 in SLP (C) 14156/2015, Dheeraj More v High Court of Delhi

quota earmarked for that purpose. These set of petitioners strongly relyon the decision reported as Rameshwar Dayal (supra), especially theruling of this Court (in answer to the alternative argument that twocandidates were ineligible, as they were serving in the Government),and Mahesh Chandra Gupta v. Union of India and Ors. (2009) 8SCC 273. Reliance is also placed on Chandra Mohan (supra). It issubmitted that in Chandra Mohan(supra), this Court categorically heldthat the disqualification attached to persons in the service of the Unionor State [under Article 233(1)], expressly excludes those in theemployment of the State, holding executive posts and discharging purelyexecutive function, but does not prevent those in judicial service. It waspointed out that the rule considered in Chandra Mohan (supra) – clearlyentitled 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. thosewith less than seven years’ experience at the Bar, and who have beenworking as judicial officers) submit that neither Article 233(1) nor Article233(2) bar the participation of such candidates (as long as they have anoverall combined experience of seven years – at the Bar and in judicialservice) in the recruitment process alongwith members of the Bar, forappointment 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 argumentgoes, confers power upon the Governor to make appointments, subjectto consultation with the High Court of the State. It is urged that this is anindependent source of power; in exercise of this provision, the Governorcan make appointment of persons in the judicial service. Another argument,in the context of power under Article 233 (2) is that the experience ofseven years’ at the bar, applies only to those in practise at the bar. Itcannot apply to those already in the judicial service of the State. Thedecision in Rameshwar Dayal (supra) is relied upon. The petitionersalso urge that Chandra Mohan (supra) decided that it is only membersof the judicial services of any State, who can be considered forappointment, as District Judges [in addition to Advocates with sevenyears’ practise at the Bar, per Article 233 (2)] and not members of theexecutive branch of the States or the Union. It is emphasized that infact, the rule which this court had to consider, permitted judicial officersto compete along with members of the Bar, for selection and appointmentto the post of District Judge.

A7. It was argued, in addition, that the provision by which the quotaearmarked for members of the Bar, to be exclusively competed for bythem and for which members of the judicial services are prohibited fromapplying, is discriminatory. Learned counsel highlighted that such bar(preventing members in the judicial services) from applying andcompeting, along with members of the Bar, is arbitrary, because there isBno basis for such classification. It was submitted in this regard that theConstitution makers envisaged that only those with talent could berecruited 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 judge is as, if not more,Crelevant in discharge of duties and functions as District Judges; on theother hand, Advocates with enrolment and experience of seven years atthe Bar, have no manner of experience. Counsel emphasized that thephrase used in Article 233 i.e. being an advocate of not less than sevenyears’ standing, has to be considered along with the bar to members ofthe services or holders of posts under the Union or the States, fromDcompeting for the post of District Judge. The Constitution merelyunderlined that the lawyer, competing for that post should not have lessthan seven years’ experience; however, for members of the judicialservice, neither is bar (or restriction) expressed, nor can an implied barbe discerned. Therefore, the absolute restriction placed on members ofEany judicial service, from competing along with lawyers in the quotaearmarked for that purpose, is unconstitutional and void. It was submittedthat the decision in Satya Naraian Singh (supra), to the effect that theConstitution made clear distinction between the two sources ofrecruitment and the dichotomy is maintained, and that the two streamsare separate until they come together by appointment, is erroneous andFneeds correction. It is further submitted that the decision of this court inDeepak Aggarwal (supra) to the effect that Article 233 (2) mandatesthat an applicant has to be in practise as member of the Bar, at thetime of making the application (for appointment), was wrongly decided.Deepak Aggarwal (supra) held as follows:G“This is clear by use of ‘has been’. The present perfectcontinuous tense is used for position which began at sometime in the past and is still continuing. Therefore, one of theessential requirements articulated by the above expression inArticle 233 (2) is that such person must with requisite periodHbe continuing as an advocate on the date of application.”

8. It was submitted that besides being unduly narrow, the literalinterpretation of Article 233 (2) defeats the broad objective that theframers of the Constitution had in mind, and their intent to bring in thebest minds and those with talent, irrespective of whether they weremembers of the Bar, or holders of judicial office, at the time ofcommencement of the recruitment process.

9. The respondents, both States and High Courts, countered thesubmissions of the petitioners, contending that neither Rameshwar Dayal(supra) nor Chandra Mohan (supra), (both Constitution Benchdecisions) held that members of any judicial service had right underthe Constitution to apply for selection to the post of District Judges, onthe basis that they had been Advocates at some prior point of time. Itwas pointed out that Article 233 (1) merely indicates that the appointmentto the post of District Judge is to be made by the Governor, on therecommendation of the High Court; so is also the case with promotions,postings etc. This provision merely indicates who is the appointingauthority: it also lays down that such appointment cannot be made withoutthe concurrence or recommendation of the High Court concerned.Chandra Mohan (supra), it was submitted, decisively held that therecommendation of the High Court is binding; it also clearly held thatthose in the services of the State, i.e. selected and appointed toadministrative or executive departments or services, were barred fromconsideration to the post of District Judge.

10. It was submitted that for the last many decades, two clearstreams of appointment to the post of District Judge have been delineatedin the States: one, by direct recruitment (from members of the Bar withnot less than seven years’ experience) and two, from among membersof the judicial service, fulfilling the requisite criteria, necessary to beconsidered for promotion. The latter category are considered andrecommended for promotion in accordance with rules framed underArticle 234 of the Constitution of India, read with proviso to Article 309.

The relevant provisions of the Constitution, for the purposesof this judgment, are extracted below:

“Article 233 Appointment of district judges

(1) Appointments of persons to be, and the posting andpromotion of, district judges in any State shall be madeby the Governor of the State in consultation with the HighCourt exercising jurisdiction in relation to such State.

(2) person not already in the service of the Union or ofthe State shall only be eligible to be appointed districtjudge if he has been for not less than seven years as anadvocate or pleader and is recommended by the HighCourt for appointment.

BArticle 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 judicialservice of State or of any person who has been for not lessthan seven years an advocate or pleader, to be districtjudge in that State, and

(ii) no posting, promotion or transfer of any such person as adistrict judge, made at any time before the commencement ofthe Constitution (Twentieth Amendment) Act, 1966, otherwisethan in accordance with the provisions of article 233 or article235 shall be deemed to be illegal or void or ever to havebecome illegal or void by reason only of the fact that suchappointment, posting, promotion or transfer was not made inaccordance with the said provisions;

E(b) no jurisdiction exercised, no judgment, decree, sentenceor order passed or made, and no other act or proceedingdone or taken, before the commencement of the Constitution(Twentieth Amendment) Act, 1966 by, or before, any personappointed, posted, promoted or transferred as district judgeFin any State otherwise than in accordance with the provisionsof article 233 or article 235 shall be deemed to be illegal orinvalid or ever to have become illegal or invalid by reasononly of the fact that such appointment, posting, promotion ortransfer was not made in accordance with the said provisions.

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

Appointments of persons other than district judges to thejudicial service of State shall be made by the Governor ofthe State in accordance with rules made by him in that behalfafter consultation with the State Public Service Commission

and with the High Court exercising jurisdiction in relation tosuch State.

Article 235 Control over subordinate courts

The control over district courts and courts subordinate theretoincluding the posting and promotion of, and the grant of leaveto, persons belonging to the judicial service of State andholding any post inferior to the post of district judge shall bevested in the High Court, but nothing in this article shall beconstrued as taking away from any such person any right ofappeal which he may have under the law regulating theconditions of his service or as authorising the High Court todeal with him otherwise than in accordance with the conditionsof his service prescribed under such law.

Article 236 {Interpretation}

In this Chapter–

(a) the expression “district judge” includes judge of citycivil court, additional district judge, joint district judge,assistant district judge, chief judge of small cause court,chief presidency magistrate, additional chief presidencymagistrate, sessions judge, additional sessions judge andassistant sessions judge;

(b) the expression “judicial service” means service consistingexclusively of persons intended to fill the post of district judgeand other civil judicial posts inferior to the post of districtjudge.”

11. It would be first essential to recollect that the power of HighCourts, to recommend to the Governor, suitable persons, for appointment,is now considered to be decisive; the recommendation is almost alwaysbinding, barring in exceptional circumstances. This court, in State ofWest Bengal v. Nripendra Nath Bagchi (1966 (1) SCR 771) and HighCourt of Punjab and Haryana etc. v. State of Haryana 1975 (3)SCR 365 had ruled that Article 235 vests control in the High Courts overDistrict Courts and courts subordinate to it. The Governor (of theconcerned State) appoints, dismisses and removes Judicial Officers. Thecontrol vested in the High Court is complete control subject to the powerof the Governor in the matter of appointment including dismissal, removal,

Areduction in rank and the initial posting and of the initial promotion toDistrict Judges. It was also held that nothing in Article 235 restricts thecontrol of the High Court in respect of Judges other than District Judgesin any manner. This position was endorsed by four-judge bench of thiscourt in State of Haryana vs. Inder Prakash Anand H.C.S. & Ors.1976 (2) SCR 977.B

12. In the decision reported as State of Assam and Ors. vs. S.N.Sen & Ors 1972 (2) SCR 251, Constitution Bench of this court underlinedthe unique nature of the power of the High Courts, while interpretingArticles 233-235 of the Constitution of India:C“13. Under the provisions of the Constitution itself the powerof promotion of persons holding posts inferior to that of thedistrict judge is in the High Court. It stands to reason that thepower to confirm such promotions should also be in the HighCourt.

D14. This Court has on several occasions expressed its viewson Article 235 of the Constitution. In The State of West Bengalv. Nripendra Nath Bagchi (1968) I LLJ 270 (SC), it waspointed out:

“In the case of the judicial service subordinate to the districtEjudge the appointment has to be made by the Governor inaccordance with the rules to be framed after consultationwith the State Public Service Commission and the High Courtbut the power of posting, promotion and grant of leave andthe control of the courts are vested in the High Court.”

F15. year later, in State of Assam v. Ratiga Mohammed andOrs. (1968) I LLJ 282 SC this Court against observed asfollows:

“The High Court is in the day to day control of courts andknows the capacity for work of individuals and therequirements of particular station or Court. The HighGCourt is better suited to make transfers than Minister.For however well-meaning & Minister may be he can neverpossess the same intimate knowledge of the working ofthe judiciary as whole and of individual judges, as theHigh Court. He must depend on his department forHinformation. The Chief Justice and his colleagues know

these matters and deal with them personally. There is lesschance of being influenced by secretaries who maywithhold some vital, information if they are interestedthemselves. It is also well-known that all stations are notsimilar in climate and education, medical and otherfacilities. Some are good stations and some are not so good.There is less chance of success for person seekingadvantage for himself if the Chief Justice and hiscolleagues, with personal information, deal with the matter,than when Minister deals with it on notes and informationsupplied by secretary.”

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

13. The decision in Rameshwar Dayal (supra) was in the contextof challenge to the eligibility of candidates who had been selected andappointed as District Judges. The main argument – or ground of challengewas that the incumbents/appointees did not possess seven years’ practiseat the Bar: which was repelled by this court. The court held that thepractise of the concerned appointees, which spanned about two decadesor so, in pre-partition India, had to be included for reckoning the seven-year period. The court considered the provisions of the Bar CouncilsAct, 1926, and the High Courts (Punjab) Order, 1947. The relevant partof the discussion in that judgment, which repelled the challenge to theappointments, is extracted below:“14. Learned Counsel for the appellant has also drawn ourattention to Explanation I to clause (3) of Art. 124 of theConstitution relating to the qualifications for appointment asa Judge of the Supreme Court and to the Explanation to clause(2) of Art. 217 relating to the qualifications for appointmentas Judge of High Court, and has submitted that where theConstitution-makers thought it necessary they specificallyprovided for counting the period in High Court which wasformerly in India. Articles 124 and 217 are differently wordedand refer to an additional qualification of citizenship which

is not requirement of Art. 233, and we do not think thatclause (2) of Art. 233 can be interpreted in the light ofExplanations added to Arts. 124 and 217.

Article 233 is self-contained provision regarding theappointment of District Judges. As to person who is alreadyin the service of the Union or of the State, no specialqualifications are laid down and under clause (1) the Governorcan appoint such person as district judge in consultationwith the relevant High Court. As to person not already inservice, qualification is laid down in clause (2) and all thatis required is that he should be an advocate or pleader ofseven years’ standing.

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

15. What will be the result if the interpretation canvassedfor on behalf of the appellant is accepted ? Then, for sevenyear beginning from August 15, 1947, no member of theBar of the Punjab High Court would be eligible forappointment as district judge - result which has only tobe stated to demonstrate the weakness of the argument.We have proceeded so far on the first two submissions oflearned Counsel for the appellant, and on that basis dealtwith his third submission.

It is perhaps necessary to add that we must not beunderstood to have decided that the expression ‘has been’must always mean that learned Counsel for the appellantsays it means according to the strict rules of grammar. Itmay be seriously questioned if an organic Constitution mustbe so narrowly interpreted, and the learned AdditionalSolicitor-General has drawn our attention to other Articlesof the Constitution like Art. 5(c) where in the context theexpression has different meaning. Our attention has alsobeen drawn to the decision of the Allahabad High Courtin Mubarak Mazdoor v. K. K. Banerji AIR 1958 All 323

where different meaning was given to similar expressionoccurring in the proviso to sub-section (3) of section 86 ofthe Representation of the People Act, 1951. We consider itunnecessary to pursue this matter further because therespondents we are now considering continued to beadvocates of the Punjab High Court when they wereappointed as district judges and they had standing ofmore than seven years when so appointed. They wereclearly eligible for appointment under clause 2 of Art. 233of the Constitution.16. We now turn to the other two respondents (HarbansSingh and P. R. Sawhney) whose names were not factuallyon the roll of Advocates at the time they were appointed asdistrict judges. What is their position ? We consider thatthey also fulfilled the requirements of Art. 233 of theConstitution. Harbans Singh was in service of the State atthe time of his appointment, and Mr. ViswanathaSastriappearing for him has submitted that clause (2) of Art.233 did not apply. We consider that even if we proceed onthe footing that both these persons were recruited from theBar and their appointment has to be tested by therequirements of clause (2), we must hold that they fulfilledthose requirements. They were Advocates enrolled in theLahore High Court; this is not disputed. Under clause 6 ofthe High Courts (Punjab) Order, 1947, they wererecognised as Advocates entitled to practise in the PunjabHigh Court till the Bar Councils Act, 1926, came into force.Under section 8(2)(a) of that Act it was the duty of theHigh Court to prepare and maintain roll of advocates inwhich their names should have been entered on the day onwhich section 8 came into force, that is, on September 28,1948. The proviso to sub-section (2) of section 8 requiredthem to deposit fee of Rs. 10 payable to the Bar Council.Obviously such payment could hardly be made before theBar Council was constituted. We do not agree with learnedCounsel for the appellant and the interveners (B. D. Pathakand Om Dutt Sharma) that the proviso had the effect oftaking away the right which these respondents had to comeautomatically on the roll of advocates under section 8(2)(a)

Aof the Act. We consider that the combined effect of clause6 of the High Courts (Punjab) Order, 1947, and section8(2)(a) of the Bar Councils Act, 1926, was this : fromAugust 15, 1947, to September 28, 1948, they wererecognised as Advocates entitled to practise in the PunjabHigh Court and after September 28, 1948, theyBautomatically came on the roll of advocates of the PunjabHigh Court but had to pay fee of Rs. 10 to the Bar Council.They did not cease to be advocates at any time or stageafter August 15, 1947, and they continued to be advocatesof the Punjab High Court till they were appointed asCDistrict Judges. They also had the necessary standing ofseven years to be eligible under clause (2) of Art. 233 ofthe Constitution.”

14. It is thus evident, that the main part of the discussion relatedto the possession of qualification, i.e. seven years’ experience at theDBar, of the concerned candidates. As regards some candidates, theargument that they were not members of the Bar on the date of theirappointment (as District Judge) was rejected: “they continued to beadvocates of the Punjab High Court till they were appointed asDistrict Judges. They also had the necessary standing of seven yearsto be eligible.”E

significant aspect, is that this court had no occasion to deal withany rules framed under Articles 233 or 234, in relation to the appointmentor promotion to the post of District Judge.

15. The next decision is of Chandra Mohan (supra). There, theFissue was regarding eligibility of certain candidates, who were membersof the civil services or holders of civil posts of, the State. This court firstnoticed 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 promotionGof, district judges in any State shall be made by the Governorof the State. There are two sources of recruitment, namely, (i)service of the Union or of the State, and (ii) members of theBar. The said judges from the first source are appointed inconsultation with the High Court and those from the secondsources are appointed on the recommendation of the HighHCourt. But in the case of appointments of persons to thejudicial service other than as district judges, they will be madeby the Governor of the State in accordance with rules framedby him in consultation with the High Court and the PublicService Commission. But the High Court has control over alldistrict courts and courts subordinate thereto, subject tocertain prescribed limitations.”

16. Thereafter, the court held that the expression “not alreadyin the service” of the Union or any State meant that those holding civilposts, 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 servicescould be considered for appointment.

17. Satya Naraian Singh (supra) is direct authority on the issuewhich this court is now concerned with. There, members of the UPjudicial service responded and applied to direct recruitment posts in theUP Higher Judicial Service claiming that they had acquired 7 years’practice at the bar prior to their appointment to the judicial service. TheHigh Court ruled that they were ineligible for appointment by directrecruitment to UP Higher Judicial Service. On appeal, it was urged thatany interpretation of Article 233 which would render member of theSubordinate judicial service ineligible for appointment to the Higher JudicialService by direct recruitment because of the additional experiencegained by him as Judicial officer would be unjustified. This court, afternoticing Rameshwar Dayal (supra) and Chandra Mohan (supra) heldas follows:

“We may mention here that Service of the Union or of theState’ has been interpreted by this Court to mean judicialservice. Again while the first clause make consultation by theGovernor of the State with the High Court necessary, thesecond clause requires that the High Court must recommenda person for appointment as District Judge. It is only inrespect of the persons covered by the second clause that thereis requirement that person shall be eligible for appointmentas District Judge if he has been an advocate or pleader fornot less than 7 years. In other words, in the case of candidateswho are not members of Judicial Service they must havebeen advocates or pleaders for not less than 7 years andthey have to be recommended by the High Court before they

may be appointed as District Judges, while in the case ofcandidates who are members of Judicial Service the 7 yearsrule has no application but there has to be consultation withHigh Court. clear distinction is made between the twosources of recruitment and the dichotomy is maintained. Thetwo streams are separate until they come together byappointment. Obviously the same slip (sic. ship) cannot sailboth 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,- “The gist of the said provisions maybe stated thus: Appointments of persons to be, and the postingand pro motion of, district judges in any State shall be madeby the Governor of the State. There are two sources ofrecruitment, namely, (i) service or the Union or of the Stateand (ii) members of Bar. The said judges from the first sourceare appointed in consultation with the High Court and thosefrom the second source are appointed on the recommendationof the High Court. But in the case of appointments of personsto the judicial service other than as district judges, they willbe made by the Governor of the State in accordance withrules framed by him in consultation with the High Court andthe Public Service Commission. But the High Court has controlover all the district courts and courts subordinate thereto,subject to certain prescribed limitations.”Subba Rao, CJ. then proceeded to consider whetherthe Government could appoint as district judges persons fromservices other than the judicial service. After pointing outthat Art. 233 (1) was declaration of the general power ofthe Governor in the matter of appointment of district judgesand he did not lay down the qualifications of the candidatesto be appointed or denoted the sources from which therecruitment had to be made, he proceeded to state, “But thesources of recruitment are indicated in cl. (2) thereof. Undercl. (2 of Are. 233 two sources are given namely, (i) persons inthe service of the Union or of the State, and (ii) advocate orpleader.” Posing the question whether the expression “theservice of the Union or of the State” meant any service of the

Union or of the State or whether it meant the judicial serviceof the Union or of the State, the learned Chief Justiceemphatically held that the expression “the service” in Art.233 (2) could only mean the judicial service. But he did notmean by the above statement that persons who are already inthe service, on the recommendation by the High Court can beappointed as District Judges, overlooking the claims of allother 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 thecontention advanced on behalf of the petitioners but, to theextent that they go, they certainly advance the case of therespondents. We therefore, see no reason to depart from theview already taken by us and we accordingly dismiss the writpetitions.”

18. In the decision reported as Deepak Agarwal (supra) this courthad to deal with conflict between certain previous judgments, on thequestion of whether salaried public prosecutors or government counsel,after obtaining full time employment under the State (or the Union) couldbe 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 analysisof the previous decisions, observed as follows:

“…by the above resolution of the Bar Council of India, thesecond and third para of Rule 49 have been deleted but wehave to see the effect of such deletion. What Rule 49 of theBCI Rules provides is that an advocate shall not be full timesalaried 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 theemployment of an advocate who has been solely or, in anycase, predominantly employed to act and/or plead on behalfof his client in courts of law. If person has been engaged toact and/or plead in court of law as an advocate although byway of employment on terms of salary and other serviceconditions, such employment is not what is covered by Rule49 as he continues to practice law but, on the other hand, ifhe is employed not mainly to act and/or plead in court oflaw, but to do other kinds of legal work, the prohibition in

Rule 49 immediately comes into play and then he becomes amere employee and ceases to be an advocate. The barcontained in Rule 49 applies to an employment for work otherthan conduct of cases in courts as an advocate. In this viewof the matter, the deletion of second and third para by theResolution dated 22.6.2001 has not materially altered theposition insofar as advocates who have been employed bythe State Government or the Central Government to conductcivil and criminal cases on their behalf in the courts areconcerned.85. What we have said above gets fortified by Rule 43 of theBCI Rules. Rule 43 provides that an advocate, who has takena full-time service or part-time service inconsistent with hispractising as an advocate, shall send declaration to thateffect to the respective State Bar Council within time specifiedtherein and any default in that regard may entail suspensionof the right to practice. In other words, if full-time service orpart-time service taken by an advocate is consistent with hispractising as an advocate, no such declaration is necessary.The factum of employment is not material but the key aspectis whether such employment is consistent with his practisingas an advocate or, in other words, whether pursuant to suchemployment, he continues to act and/or plead in the courts. Ifthe answer is yes, then despite employment he continues to bean advocate. On the other hand, if the answer is in negative,he ceases to be an advocate.

86. An advocate has two-fold duty: (1) to protect the interestof his client and pursue the case briefed to him with the bestof his ability, and (2) as an officer of the Court. Whether full-time employment creates any conflict of duty or interest for aPublic Prosecutor/Assistant Public Prosecutor? We do notthink so. As noticed above, and that has been consistentlystated by this Court, Public Prosecutor is not mouth- pieceof the investigating agency. In our opinion, even though PublicProsecutor/Assistant Public Prosecutor is in full-time employwith the government and is subject to disciplinary control ofthe employer, but once he appears in the court for conduct of

case or prosecution, he is guided by the norms consistentwith the interest of justice. His acts always remain to serveand protect the public interest. He has to discharge hisfunctions fairly, objectively and within the framework of thelegal provisions. It may, therefore, not be correct to say thatan Assistant Public Prosecutor is not an officer of the court.The view in Samarendra Das to the extent it holds that anAssistant Public Prosecutor is not an officer of the Court isnot correct view.”

Dealing specifically with the issue of the requirement under Article233 (1) that the applicant “has been” in practise for 7 years, this courtsignificantly held as follows:

“88. As regards construction of the expression, “if he hasbeen for not less than seven years an advocate” in Article233 (2) of the Constitution, we think Mr. Prashant Bhushanwas right in his submission that this expression means sevenyears as an advocate immediately preceding the applicationand not seven years any time in the past. This is clear by useof ‘has been’. The present perfect continuous tense is usedfor position which began at some time in the past and is stillcontinuing. Therefore, one of the essential requirementsarticulated by the above expression in Article 233 (2) is thatsuch person must with requisite period be continuing as anadvocate on the date of application.

89. Rule 11 of the HSJS Rules provides for qualifications fordirect recruits in Haryana Superior Judicial Service. Clause(b) of this rule provides that the applicant must have beenduly enrolled as an advocate and has practised for periodnot less than seven years. Since we have already held thatthese five private appellants did not cease to be advocatewhile working as Assistant District Attorney/Public Prosecutor/Deputy Advocate General, the period during which they havebeen working as such has to be considered as the periodpractising law. Seen thus, all of them have been advocatesfor not less than seven years and were enrolled as advocatesand were continuing as advocates on the date of theapplication.”

A19. It is clear that what this court had to consider was whetherpublic prosecutors and government advocates were barred from applyingfor direct recruitments (i.e. whether they could be considered to havebeen in practise) and whether- during their course of their employment,as public prosecutors etc, they could be said to have “been for not lessthan seven years” practising as advocates. The court quite clearly ruledBthat such public prosecutors/government counsel (as long as theycontinued to appear as advocates before the court) answered thedescription and were therefore eligible.

20. In Vijay Kumar Mishra (supra) the challenge was to therejection of representation (of the petitioners) to appear in interviewCfor the post of District Judge Entry Level (Direct from Bar) Examination,2015. condition, i.e. that they had to tender their resignation, first, fromthe Subordinate Judicial Service of the State of Bihar as preconditionthat they could appear in the interview was imposed. The facts werethat the petitioners, who were practising advocates with seven years’Dpractise, on the cut-off date (5[th] February, 2015) and applied as such tothe posts, responding to an application; they were permitted to andappeared in the Preliminary as well as in the Mains Examination pursuantto such advertisement. Before the publication of the results of the test,for the post, they qualified in and were appointed to the Bihar StateSubordinate Judicial Service in the 28th Batch. They accordingly joinedEthe subordinate judicial service in August, 2015. The result of the mainsexamination of the District Judge Entry Level (Direct from Bar) waspublished on 22nd of January, 2016. The petitioners qualified in the MainsExamination. They however were not called for interview; their requestwas dealt with, and they were asked to resign from the subordinate

Fjudicial service, as precondition, which was challenged. The High Courtrepelled the challenge holding that to permit the appellant to participatein the interview would be breaching the mandate of Article 233 (2) holdingthat 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 EntryGLevel (Direct from Bar) as they were, members of the judicial Service.

21. The court in Vijay Kumar Mishra (supra) after noticingSatya Naraian Singh (supra) and Deepak Agarwal (supra) held that:

“7. It is well settled in service law that there is distinctionHbetween selection and appointment. Every person who is

successful in the selection process undertaken by the Statefor the purpose of filling up of certain posts under the Statedoes not acquire any right to be appointed automatically.Textually, Article 233 (2) only prohibits the appointment of aperson who is already in the service of the Union or the State,but not the selection of such person. The right of such aperson to participate in the selection process undertaken bythe State for appointment to any post in public service (subjectto other rational prescriptions regarding the eligibility forparticipating in the selection process such as age, educationalqualification etc.) and be considered is guaranteed underArt. 14 and 16 of the Constitution.8. The text of Article 233 (2) only prohibits the appointmentof person as District Judge, if such person is already inthe service of either the Union or the State. It does not prohibitthe consideration of the candidature of person who is inthe service of the Union or the State. person who is in theservice of either of the Union or the State would still have theoption, if selected to join the service as District Judge orcontinue with his existing employment. Compelling personto resign his job even for the purpose of assessing hissuitability for appointment as District Judge, in our opinion,is not permitted either by the text of Article 233 (2) norcontemplated under the scheme of the constitution as it wouldnot serve any constitutionally desirable purpose.”

22. Justice Chelameshwar held that that neither of the twodecisions [Satya Naraian Singh (supra) and Deepak Agarwal (supra)]dealt with the issue on hand. The other member of the Bench (JusticeSapre) concurred, stating as follows:

“12) In my opinion, there is no bar for person to apply forthe post of district judge, if he otherwise, satisfies thequalifications prescribed for the post while remaining inservice 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 selectionprocess when he otherwise fulfills all conditions prescribedin the advertisement by taking recourse to clause (2) of Article233 would, in my opinion, amount to violating his right

ABC

Aguaranteed under Articles 14 and 16 of the Constitution ofIndia.

13) It is settled principle of rule of interpretation that onemust have regard to subject and the object for which the Actis enacted. To interpret Statue in reasonable manner, theBCourt must place itself in chair of reasonable legislator/author. So done, the rules of purposive construction have tobe resorted to so that the object of the Act is fulfilled. Similarly,it is also recognized rule of interpretation of Statutes thatexpressions used therein should ordinarily be understood inthe sense in which they best harmonize with the object of theCStatute and which effectuate the object of the legislature. (See-Interpretation of Statues 12th Edition, pages 119 and 127 byG.P.Singh). The aforesaid principle, in my opinion, equallyapplies while interpreting the provisions of Article 233 (2) ofthe Constitution.”

23. It is thus evident, that Rameshwar Dayal (supra) was mainlyconcerned with the question whether practice as pleader or advocate,in pre-partition India could be reckoned, for the purpose of calculatingthe seven-year period, stipulated in Article 233 (2). No doubt, there aresome observations, with respect to appointments being referable to ArticleE233 (1). However, the important aspect which is to be kept in mind, isthat no rules were discussed; the experience of the concerned Advocates,who were appointed as District Judges, were for considerable period,in pre-partition India, in the erstwhile undivided Punjab. Chandra Mohan(supra), on the other hand is clear authority – and an importantjudgment, on the aspect that those in the service of or holding posts,Funder the Union or States, - if they are not in judicial service- are ineligiblefor appointment as District Judges, under Article 233 (2) of theConstitution. The corollary was that those holding judicial posts werenot barred as holders of office or posts under the Union or the State.Significantly, this court in Chandra Mohan (supra), invalidated ruleGwhich rendered both officers holding executive positions, under the State,and those holding judicial posts, eligible to apply for appointment underArticle 233 (2). In Satya Naraian Singh (supra) this court clearly heldthat the disqualification of those holding judicial posts from applying asAdvocates, under Article 233 (2) did not violate Article 14:a “cleardistinction is made between the two sources of recruitment and theHdichotomy is maintained. The two streams are separate until theycome together by appointment. Obviously the same slip (sic ship)cannot sail both the streams simultaneously.”

24. close reading of Article 233, other provisions of theConstitution, and the judgments discussed would show discloses thefollowing:

(a) That the Governor of State has the authority to make“appointments of persons to be, and the posting andpromotion of, district judges in any State (Article 233 [1]);

(b) While so appointing the Governor is bound to consult the HighCourt (Article 233 [1]: Chandra Mohan (supra) andChandramouleshwar Prasad v Patna High Court 1970 (2) SCR666[2]);

(c) Article 233 (1) cannot be construed as source of appointment;it merely delineates as to who is the appointing authority;

(d) In matters relating to initial posting, initial appointment, andpromotion of District Judges, the Governor has the authority toissue the order; thereafter it is up to the High Court, by virtue ofArticle 235, to exercise control and superintendence over theconditions of service of such District Judges. (See State of Assamv Ranga Mahammad 1967 (1) SCR 454[3]);

2 The court in Chandramouleshwar Prasad held that

“No doubt the appointment of person to be District Judge rests with the Governorbut he cannot make the appointment on his own initiative and must do so in consultationwith the High Court. The underlying idea of the Article is that the Governor shouldmake up his mind after there has been deliberation with the High Court.”

3 This court held as follows:

“By the first of these articles the question of appointment is considered separately butby the second of these articles posting and promotion of persons belonging to thejudicial service of the State and holding any post inferior to the post of district Judgeis also vested in the High Court. The word ‘post’ used twice in the article clearly meansthe position or job and not the station or place and ‘posting’ must obviously mean theassignment to position or job and not placing in-charge of station or Court. Theassociation of words in Art 235 is much clearer but as the word ‘posting’ in the earlierarticle deals with the same subject matter, it was most certainly used in the same senseand . this conclusion is thus quite apparent. This is, of course, as it should be. The HighCourt is in the day to day control of courts and knows the capacity for work of individualsand the requirements of particular station or Court. The High Court is better suited to

A(e) Article 233 (2) is concerned only with eligibilityof those whocan be considered for appointment as District Judge. TheConstitution clearly states that one who has been for not less thanseven years, “an advocate or pleader” and one who is “notalready in the service of the Union or of the State” (in thesense that such person is not holder of civil or executive post,Bunder the Union or of State) can be considered for appointment,as District judge. Significantly, the eligibility- for both categories,is couched in negative terms. Clearly, all that the Constitutionenvisioned was that an advocate with not less than seven years’practise could be appointed as District Judge, under Article 233C(2).

(f) Significantly, Article 233 (2) ex facie does not exclude judicialofficers from consideration for appointment to the post of DistrictJudge. It, however, equally does not spell out any criteria for suchcategory of candidates. This does not mean however, that if theyDor any of them, had seven years’ practise in the past, can be

considered eligible, because no one amongst them can be said to

make transfers than Minister. For however well-meaning Minister may be he cannever possess the same intimate knowledge of the working of the judiciary as wholeand of individual Judges, as the High Court. He must depend on his department forinformation. The Chief Justice and his colleagues know these matters and deal withEthem personally. There is less chance of being influenced by secretaries who maywithhold some vital information if they are interested themselves. It is also well-knownthat 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 fora person seeking advantage for himself if the Chief Justice and his colleagues, withpersonal information, deal with the matter, than when Minister deals with it on notesand information supplied by secretary. The reason of the rule and the sense of theFmatter combine to suggest the narrow meaning accepted by us. The policy displayed bythe Constitution has been in this direction as has been explained in earlier cases of thisCourt. The High Court was thus right in its conclusion that the powers of the Governorcease after he has appointed or promoted person to be district Judge and assignedhim to post in cadre. Thereafter, transfer of incumbents is matter within the controlof District Courts including the control of persons presiding there as explained in thecited case.G

As the High Court is the authority to make transfers, there was no question ofa consultation on this account. The State Government was not the authority to order thetransfers. There was, however, need for consultation before D. N. Deka was promotedand posted as District Judge. That such consultation is mandatory has been laiddown quite definitely in the recent decision of this Court in Chandra Mohan v UP Onthis part of the case it is sufficient to say that there was consultation.”H

answer the description of candidate who “has been for notless than seven years” “an advocate or pleader” (perDeepak Agarwal, i.e. that the applicant/candidate should be anadvocate fulfilling the condition of practise on the date of theeligibility condition, or applying for the post). The sequitur clearlyis that judicial officer is not one who has been for not less thanseven 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) rendersineligible all those who hold civil posts under State or the Union, just asit renders all advocates with less than seven years’ practice ineligible, onthe date fixed for reckoning eligibility. Equally, those in judicial service[i.e. holders of posts other than District Judge, per Article 236 (2)] arenot entitled to consideration because the provision (Article 233 [2]) doesnot prescribe any eligibility condition. Does this mean that any judicialofficer, with any length of service as member of the judicial service, isentitled to consideration under Article 233 (2)? The answer is clearly inthe negative. This is because the negative phraseology through whicheligibility of holders of civil posts, or those in civil service (of the State orthe Union) and advocates with seven years’ service is couched. However,the eligibility conditions are not spelt out in respect of those who are inthe judicial service.26. The omission, - in regard to spelling out the eligibility conditionsvis-à-vis judicial officers, to the post of District Judge, in the opinion ofthis court, is clearly by design. This subject matter is covered by threeprovisions: Article 233 (1) – which refers to promotionsto the post ofDistrict Judge; Article 234, which, like Article 233 (1) constitutes theGovernor as the appointing authority in respect of judicial posts or services,(other than District Judges), and like Article 233 (1), subject torecommendation of the High Court concerned. This position is mostdefinitely brought home by the fact that Article 235 vests in the HighCourts 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 State and holdingany post inferior to the post of district judge.” The corollary to this isthat the Governor is appointing authority for the post of District Judge,and other judicial posts; both are to be filled after prior consultation withthe High Court, and crucially, the promotion of judicial officers, to the

Apost of District Judge, is regulated by conditions (read rules) framed bythe High Court.

27. The upshot of the above discussion is that the Constitutionmakers clearly wished to draw distinction between the two sources ofappointment to the post of District Judge. For one, i.e. Advocates, eligibilityBwas spelt out in negative phraseology, i.e. not less than seven years’practice; for judicial officers, no eligibility condition was stipulated inArticle 233 (2): this clearly meant that they were not eligible to beappointed (by direct recruitment) as they did not and could not beconsidered advocates with seven years’ practise, once they entered thejudicial service. The only channel for their appointment, was in accordanceCwith rules framed by the High court, for promotion (as District Judges)of officers in the judicial service (defined as those holding posts otherthan District Judges, per Article 236 [b]).

28. In view of the above discussion clearly, the decision in SatyaNaraian Singh (supra) correctly appreciated the relevant provisionsDand held that the dichotomy between the two streams meant that thosein one stream (read judicial service) could not compete for vacanciesfalling in the quota earmarked for advocates.

29. The petitioners had urged that the court should endeavourand interpret the provisions of the Constitution in broad manner, ratherEthan placing narrow interpretation and that rendering ineligible thosewith seven years’ practise as advocates, but who were appointed tojudicial posts, would be violative of Article 14 of the Constitution of India.It was emphasized in this regard, that there is no distinction betweenthose who continue to practice and those, who had practiced for sevenFyears, later joined the judicial service and continued in it, as on the dateof reckoning eligibility. It was urged that those in judicial service are infact better qualified, because they would be experienced in dischargingfunctions relating to judicial office, whereas those who continue topractice, and remain advocates, would not have such benefit. As betweenthe two, therefore, those holding judicial office, would be better suited. ItGwas therefore urged, that if they are permitted to compete for the postof District Judge, without insisting that they should resign, society wouldhave greater pool of merit to pick up from. The last argument wassince both categories fulfilled the basic condition of seven years’ practise,excluding those in judicial service, does not sub-serve the object ofHrecruitment, i.e. selecting the best candidates.30. In the opinion of this court, there is an inherent flaw in theargument of the petitioners. The classification or distinction made-between advocates and judicial officers, per se is constitutionallysanctioned one. This is clear from 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 twocategories in Article 233 (2): one “not already in the service of theUnion or of the State” and the other “if he has been for not less thanseven years as an advocate or pleader”. Both categories are to be“recommended by the High Court for appointment.” The intent herewas that in both cases, there were clear exclusions, i.e. advocates withless than seven years’ practice (which meant, conversely that thosewith more than seven years’ practice were eligible) and those holdingcivil posts under the State or the Union. The omission of judicial officersonly meant that such of them, who were recommended for promotion,could be so appointed by the Governor. The conditions for their promotionwere left exclusively to be framed by the High Courts.

31. In view of the above analysis, since the Constitution itselfmakes distinction between advocates on the one hand, and judicialofficers, on the other, the argument of discrimination is insubstantial. Ifone examines the scheme of appointment from both channels closely-as Justice Mishra has done- it is evident that lions’ share of posts areto be filled by those in the judicial service. For the past two decades,only fourth (25%) of the posts in the cadre of District Judges (in everyState) are earmarked for advocates; the balance 75% to be filledexclusively from amongst judicial officers. 50%, (out of 75%) is to befilled on the basis of seniority cum merit, whereas 25% (of the 75%) isto be filled by departmental examination. This examination is confined tomembers of the judicial service of the concerned State. The decision ofthis court in All India Judges’ Association & Ors v Union of India &Ors 2010 (15) SCC 170, reduced the limited departmental examinationquota (out of turn promotion quota) from 25% to 10% which took effectfrom 01.01.2011. Thus, cumulatively, even today, judicial officers areentitled 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. Itis therefore, held that the exclusion- by the rules, from consideration ofjudicial officers, to the post of District Judges, in the quota earmarkedfor Advocates with the requisite standing, or practice, conforms to themandate of Articles 233-235, and the rules are valid.

A32. This court is also of the opinion that if rules of any Statepermit judicial officers to compete in the quota for appointment as DistrictJudges, they are susceptible to challenge. The reason for this conclusionis that where dichotomy is maintained, and two distinct sources forappointment are envisaged, like the present, enabling only judicial officersto compete in the quota earmarked for advocates would potentially resultBin 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 Article233 (2), which visualized that such category of candidates would alwaysbe eligible and occupy the post of District Judge. Clear quotas for bothsources have been earmarked by High Courts. If one those in one stream,Cor source- i.e. judicial officers- are permitted to compete in the quotaearmarked 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. TheConstitution makers were aware that the judicial branch had to beDindependent, and at the same time, reflect measure of diversity ofthought, and approach. This is borne out by eligibility conditions spelt outclearly in regard to appointments at every level of both the lower andhigher judiciary: the District court, the High Courts and the SupremeCourt. In regard to judicial positions in each of these institutions, theEConstitution enables appointments, from amongst members of the Bar,as its framers were acutely conscious that practising advocates reflectindependence and are likely offer useful attribute, i.e. ability to thinkdifferently and have novel approaches to interpretation of the laws andthe Constitution, so essential for robustness of the judiciary, as well associety as whole.F

34. This view is fortified by Article 217 (2), which spells out twosources from which appointments can be resorted to for the position ofjudge of High Court: firstly, member of judicial service of State[Article 217 (a)] and an advocate with ten years’ experience [Article217 (b)]. For the Supreme Court, Article 124 (3) (a) enables considerationGof person with five years’ experience as High Court judge; Article124(3)(b) enables consideration of an advocate with ten years’experience at the bar in any High Court; Article 124(3)(c) enablesconsideration of distinguished jurist. Significantly, advocates withstipulated experience at the bar are entitled, by express provisions of theConstitution [Articles 233 (2), Article 217 (b) and Article 124 (3) (b)] toH

be considered for appointment to the District Courts, High Courts andthe Supreme Court, respectively. However, members of the judicialservice can be considered only for appointment (by promotion) as DistrictJudges, and as High Court judges, respectively. Members of the judicialservice cannot be considered for appointment to the Supreme Court.Likewise, academics or distinguished jurists, with neither practise at theBar, nor any experience in the judicial service, can be considered forappointment 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 forappointment at all three levels, i.e. as District judges, High Courts andthis court. This was because counsel practising in the law courts have adirect link with the people who need their services; their views about thefunctioning of the courts, is constant dynamic. Similarly, their views,based on the experience gained at the Bar, injects the judicial branchwith fresh perspectives; uniquely positioned as professional, an advocatehas tripartite relationship: one with the public, the second with thecourt, and the third, with her or his client. counsel, learned in the law,has an obligation, as an officer of the court, to advance the cause of hisclient, in fair manner, and assist the court. Being members of the legalprofession, 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 beresorted to. For all these reasons, it is held that members of the judicialservice of any State cannot claim to be appointed for vacancies in thecadre of District Judge, in the quota earmarked for appointment fromamongst eligible Advocates, under Article 233.

36. This court is of the opinion that the decision in Vijay KumarMishra (supra), as far as it makes distinction between consideration,of candidate’s eligibility, at the stage of selection, and eligibilityreckonable at the time of appointment, is incorrect. There is clear authorityto the proposition that eligibility of any candidate is to be reckoned, notfrom the date of his or her selection, but in terms of the rules, or theadvertisement for the post. In Ashok Kumar Sharma & Ors. vs.Chander Shekhar & Ors 1997 (4) SCC 18, three-judge bench of thiscourt held as follows:“6….The proposition that where applications are called forprescribing particular date as the last date for filing theapplications, the eligibility of the candidates shall have to be

Ajudged with reference to that date and that date alone, is awell-established one. person who acquires the prescribedqualification subsequent to such prescribed date cannot beconsidered at all. An advertisement of notification issued/published calling for application constitutes representationto the public and the authority issuing it is bound by suchBrepresentation. It cannot act contrary to it.

7. One reason behind this proposition is that if it were knownthat persons who obtained the qualifications after theprescribed date but before the date of interview would beallowed to appear for the interview, other similarly placedCpersons could also have applied. Just because some of theperson had applied notwithstanding that they had not acquiredthe prescribed qualifications by the prescribed date, they couldnot have been treated on preferential basis.

8. Their applications ought to have been rejected at theDinception itself. This proposition is indisputable and in factwas not doubted or disputed in the majority Judgment. Thisis also the proposition affirmed in Rekha Chaturvedi (Smt.) v.University of Rajasthan and Ors. (1993) I LLJ 617 (SC). Thereasoning in the majority opinion that by allowing the 33respondents to appear for the interview, the RecruitingEAuthority was able to get the best talent available and thatsuch course was in furtherance of public interest is, withrespect, an impermissible justification. It is, in our consideredopinion, clear error of law and an error apparent on theface of the record. In our opinion, R.M. Sahai, J.(and theFDivision Bench of the High Court) was right in holding thatthe 33 respondents could not have been allowed to appearfor the interview.”

This reasoning is similar to other decisions, such as U.P. PublicService Commission v Alpana 1994 (2) SCC 723 and BhupinderpalSingh & Ors. vs. State of Punjab & Ors 2000 (5) SCC 262. Therefore,Gthe observation in Vijay Kumar Mishra (supra) that “the right of sucha person to participate in the selection process undertaken by theState for appointment to any post in public service (subject to otherrational prescriptions regarding the eligibility for participating inthe selection process such as age, educational qualification etc.)Hand be considered is guaranteed under Art. 14 and 16 of the

Constitution” is not correct. With respect, the distinction sought to bemade, between “selection” and “appointment”in the context of eligibility,is without foundation. selection process begins with advertisement,calling for applications from eligible candidates. Eligibility is usually definedwith reference to possession of stipulated qualifications, experience, andage, as on the last date (of receipt of applications, or particular specifieddate, etc). Anyone fulfilling those eligibility conditions, with reference tosuch date, would be ineligible. Therefore, the observation that the rightto participate in the selection process, without possessing the prescribedeligibility conditions, is guaranteed, is not correct; the right is guaranteedonly if the candidate concerned fulfils the requisite eligibility criteria, onthe stipulated date. As pointed out by the three judge bench decision, ifthe contrary is correct, one acquiringthe stipulated qualificationssubsequent to the prescribed date cannot be considered. Also, one notfulfilling the conditions cannot be allowed to participate, because, asheld in Ashok Kumar Sharma (supra), if it were known, that suchineligible candidates can be considered, those who do not apply, but arebetter placed than the ineligible candidates who are allowed to participate,would be left out. Moreover, the authority publishing the advertisement/notificationrepresentsto the members of the public that it is bound bysuch representation.37. As result of the above discussion, it is held that Vijay KumarMishra (supra), to the extent that it is contrary to Ashok KumarSharma(supra), as regards participation in the selection process, ofcandidates who are members of the judicial service, for appointment tothe post of District Judge, from amongst the quota earmarked foradvocates with seven years’ practice, was wrongly decided. To thatextent, Vijay Kumar Mishra (supra) is hereby overruled.

38. In the light of the foregoing discussion, it is held that underArticle 233, judicial officer, regardless of her or his previous experienceas an Advocate with seven years’ practice cannot apply, and competefor appointment to any vacancy in the post of District Judge; her or hischance to occupy that post would be through promotion, in accordancewith Rules framed under Article 234 and proviso to Article 309 of theConstitution of India.

Divya Pandey

Reference answered.