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Breaking: Judicial officers can't be considered for direct recruitment as District Judges under quota for Bar: SC

Shruti Mahajan

The Supreme Court has held that judicial officers cannot be appointed as district judges through direct recruitment under the quota reserved for members of the Bar. (Dheeraj More v. Hon'ble High Court of Delhi)

The three-judge Bench of Justices Arun Mishra, Vineet Saran and S Ravindra Bhat pronounced its verdict today after reserving orders on January 16.

The quota earmarked exclusively for the members of the Bar requires a minimum continuous practice of seven years, the Court said. It thus held that subordinate judicial officers are not eligible for applying for direct recruitment.

The question of interpretation of Article 233 was referred to a larger Bench by a Division Bench of Justices Kurian Joseph and Mohan M Shantanagoudar in 2018.

Today, a three-judge Bench of the Supreme Court has addressed the question, by ultimately ruling that,

The rules framed by the High Court prohibiting judicial service officers from staking claim to the post of District Judge against the posts reserved for Advocates by way of direct recruitment, cannot be said to be ultra vires and are in conformity with Articles 14, 16 and 233 of the Constitution of India.
Supreme Court

The lead judgment rendered on behalf of Justices Mishra and Saran points out that in providing two streams of recruitment in the appointment of district judges, "opportunities are provided not only to in­service candidates but also to practicing candidates by the Constitutional Scheme to excel and to achieve what they aspire."

While this is the case, the judges proceeded to add,

... when someone joins a particular stream, i.e. a judicial service by his own volition, he cannot sail in two boats. His chance to occupy the post of District Judge would be by a two­fold channel, either in the 50% seniority/merit quota, by promotion, or the quota for limited competitive examination... There is a stream (of appointment) for in­service candidates of higher judiciary in the High Court and another stream clearly earmarked for the Bar.
Supreme Court

The Bench went on to explain that another reason for earmarking appointments for members from the Bar was to benefit from the experience gained by practicing lawyers while appearing before various courts.

Moreover, it was also noted that the Constitutional scheme of delineating the two streams of recruitment has be recognised consistently by courts over the years. In this regard, the lead judgment records,

"The makers of the Constitution visualised and the law administered in the country for the last seven decades clearly reveals that the aforesaid modes of recruitment and two separate sources, one from in­service and other from the Bar, are recognised. We do not find even a single decision supporting the cause espoused on behalf of candidates, who are in judicial service, to stake their claim as against the posts reserved for advocates/pleaders … Consistently, this Court in its previous judgments has taken the view which we now take. We find absolutely no reason to take a different view, though it was urged that mistakes committed earlier should not continue."

The concurring opinion authored by Justice Bhat also emphasised that the recognition of separate streams of recruitment for in service candidates and candidates from the Bar is in line with the Constitutional scheme. He observed,

"... the Constitution makers clearly wished to draw a distinction between the two sources of appointment to the post of District Judge. For one, i.e. Advocates, eligibility was spelt out in negative phraseology, i.e. not less than seven years’ practice; for judicial officers, no eligibility condition was stipulated in Article 233 (2): this clearly meant that they were not eligible to be appointed (by direct recruitment) as they did not and could not be considered advocates with seven years’ practise, once they entered the judicial service.

The only channel for their appointment, was in accordance with rules framed by the High court, for promotion (as District Judges) of officers in the judicial service (defined as those holding posts other than District Judges, per Article 236 [b])."

Further, he opined that to allow in-service candidates to apply for appointment of district judges in the quota earmarked for advocates, would result in rank discrimination.

If one those in one stream, or source- i.e. judicial officers- are permitted to compete in the quota earmarked for the other (i.e. advocates) without the converse situation (i.e. advocates competing in the quota earmarked for judicial officers- an impossibility) the result would be rank discrimination.
Supreme Court

Echoing similar observations by Justices Mishra and Saran, Justice Bhat also opined that the decision to earmark slots for advocates was also underscored by the recognition that they would bring a unique perspective in the interpretation of laws. In this regard, his concurring opinion states,

"The Constitution makers were aware that the judicial branch had to be independent, and at the same time, reflect a measure of diversity of thought, and approach. This is borne out by eligibility conditions spelt out clearly in regard to appointments at every level of both the lower and higher judiciary: the District court, the High Courts and the Supreme Court.

In regard to judicial positions in each of these institutions, the Constitution enables appointments, from amongst members of the Bar, as its framers were acutely conscious that practising advocates reflect independence and are likely offer a useful attribute, i.e. ability to think differently and have novel approaches to interpretation of the laws and the Constitution, so essential for robustness of the judiciary, as well as society as a whole."

[Read the Judgment]

Dheeraj Mor v. High Court of Delhi - SC Judgment.pdf
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