| Headnote |
Constitution of India – Arts.233-235 – Interpretation of Art.233 – Eligibility of members of subordinate judicial service for appointment as District Judge against the quota reserved for bar members by way of direct recruitment – Petitioners who are in judicial service inter alia claimed that there are two sources of recruitment u/Art.233(2)- from judicial service and from the bar; thus, a person in judicial service with 7 years practice at the bar before joining service (or combined with service as a judicial officer), can compete with members of the bar (with 7 or more years’ practice), for direct recruitment, in the quota earmarked to be filled by such advocates – Matter referred by Division Bench of Supreme Court – Answering the reference, Held: Per Arun Mishra and Vineet Saran, JJ. – Members in the judicial service of the State can be appointed as District Judges by way of promotion/limited competitive examination – For the purpose of Art.232(2), an advocate continuing in practice for not less than 7 years as on the cut-off date and at the time of appointment as District Judge can be appointed as District Judge by way of direct recruitment if he is not already in the judicial service of the Union or a State – Members of judicial service having 7 years’ of practice before joining service (or combined with service as a judicial officer) are not eligible to apply for direct recruitment as a District Judge – Rules framed by High Court prohibiting judicial service officers from staking claim to the post of District Judge against the posts reserved for Advocates by way of direct recruitment, are not ultra vires and are in conformity with Arts.14, 16 & 233 – In cases where in-service incumbents were appointed by way of direct recruitment from bar (in view of various interim orders passed by Supreme Court in Dheeraj Mor and other cases, though later vacated), in view of dismissal of the writ petitions filed by judicial officers, they cannot continue as District Judges – To be reverted to their original post – In case their right in channel for promotion had already ripened, and their juniors were promoted, High Court to consider their promotion in accordance with prevailing rules – Per S. Ravindra Bhat, J. (Supplementing) – Under Art.233, a judicial officer, regardless of her or his previous experience as an Advocate with seven years’ practice can not apply, and compete for appointment to any vacancy in the post of District Judge – Her/ his chance to occupy that post would be through promotion, in accordance with Rules framed u/Art.234 and proviso to Art.309 – Exclusion- by the rules, from consideration of judicial officers, to the post of District Judges, in the quota earmarked for advocates with the requisite standing, or practice, conforms to the mandate of Arts. 233-235, and the rules are valid – Service Law – Higher Judicial Service – Interpretation of Statutes.Constitution of India – Arts. 233(1), 234, 235 – Held: Per Arun Mishra and Vineet Saran, JJ. – Governor of a State is the authority for the purpose of appointment, promotion, posting and transfer – Eligibility is governed by Rules framed u/Arts. 234 & 235 – Per S. Ravindra Bhat, J. (Supplementing) – Governor of a State has the authority to make “appointments of persons to be, and the posting and promotion of, district judges in any State – While so appointing, the Governor is bound to consult the High Court – Art. 233 (1) cannot be construed as a source of appointment; it merely delineates as to who is the appointing authority – In matters relating to initial posting, initial appointment, and promotion of District Judges, the Governor has the authority to issue the order; thereafter it is up to the High Court, by virtue of Art.235, to exercise control and superintendence over the conditions of service of such District Judges – Service Law – Higher Judicial Service.Constitution of India – Art. 233(2) – Eligibility of judicial officers to compete as against the post of District Judge by way of direct recruitment – Participation in selection process vis-a-vis appointment – Plea of petitioners placing reliance on Vijay Kumar Mishra & Anr. v. High Court of Judicature at Patna & Ors. reported as [2016] 3 SCR 806 in which it was held that the bar prescribed u/Art.233(2) prohibits only the appointment of persons in service of Central/State Govt. and not their participation in the recruitment process and in case they are selected, they can resign and join the post – Held: Per Arun Mishra and Vineet Saran, JJ. – Vijay Kumar Mishra providing eligibility of judicial officer to compete as against the post of District Judge by way of direct recruitment, does not lay down the law correctly – Overruled – Per S. Ravindra Bhat, J. (Supplementing) – Vijay Kumar Mishra, as far as it makes a distinction between consideration of a candidate’s eligibility at the stage of selection, and eligibility reckonable at the time of appointment, is incorrect – Eligibility of any candidate is to be reckoned not from the date of his or her selection, but in terms of the rules, or the advertisement for the post – Service Law – Higher Judicial Service.Service Law – Higher Judicial Service – Recruitment to the posts of District Judges from two sources- in-service and from the Bar – Claim by candidates from judicial service as against the posts reserved for direct recruitment from the Bar – Held: Per Arun Mishra and Vineet Saran, JJ. – Makers of the Constitution visualised and the law administered in the country for last seven decades reveals that the aforesaid modes of recruitment and two separate sources are recognised – No room to entertain submission of discrimination based on Arts.14 & 16 – Art.233(2) starts with the negative “not,” which disentitles the claim of judicial officers against the post reserved for practicing advocates/pleaders – Per S. Ravindra Bhat, J. (Supplementing) – Since the Constitution itself makes a distinction between advocates on the one hand, and judicial officers, on the other, the argument of discrimination is insubstantial – Constitution of India – Arts.14, 16 & 233. Constitution of India – Arts. 124, 217, 233(2) – Eligibility of judicial officers to compete as against the post of District Judge by way of direct recruitment – Plea that practice as an advocate and service as a judicial officer for 10 years is to be treated at par as per explanation added to Arts. 124 & 217 – Held: In Rameshwar Dayal, this question has been considered and it was held that Art.233(2) could not be interpreted in view of the explanations added to Arts. 124 & 217. Words & Phrases – “appointment”, “advocates”, “pleaders” – Meaning of – Discussed – Constitution of India – Art.233. |
