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Can Civil Judges be appointed as District Judges as per Article 233 of the Constitution? Supreme Court reserves verdict

The central issue is whether under Article 233(2) of the Constitution of India, only advocates who have been in practice for seven years shall be eligible for appointment as District Judge.

Sanya Talwar

The Supreme Court today reserved judgment in the matter concerning appointments of Civil Judges as against District Judge posts reserved for eligible members of the Bar.

In continuance of yesterday’s part-heard proceedings, the three-judge Bench of Justices Arun Mishra, Vineet Saran and S Ravindra Bhat heard counsel for various parties.

The central issue in the matter is whether under Article 233(2) of the Constitution of India, only advocates who have been in practice for seven years shall be eligible for appointment as District Judge, and whether all others are excluded.

Yesterday, Senior Advocate Vibha Makhija, leading submissions on behalf of the petitioners, concluded her arguments. She sought to establish the interpretation of Article 233(2) that there existed no bar on the in-service judicial officers to take the higher judicial services examination. Otherwise, this would add to the burden of an already short-staffed judiciary and may curb meritorious students from being selected.

Senior Advocate Shekhar Naphade began his submissions for the petitioners today. He put forward a question before the Bench and sought to answer it in the course of his arguments:

“If there are two different methods for appointment in Article 233 of the Constitution of India, do the judicial officers qualify under both clauses?

As far as the law stands, there is no bar.”

He contended that clauses 1 and 2 of Article 233 were two different methods of appointment of District Judges. To substantiate his argument, he cited Chandra Mohan v. State Of Uttar Pradesh.

Justice Ravindra Bhat observed at this point that from a general perspective and reading of the Article, there are two sources and methods of appointment indeed. However, express rules were extremely relevant in this regard and needed to be framed.

The nitty-gritties of working rules have to be applied and looked at.”

At this juncture, while referring to the Allahabad High Court Rules, Justice Vineet Saran questioned Naphade as to why the judicial officers would want to eat into the 10 per cent quota which was reserved for Advocates, even though they were clearly eligible for promotion.

To this, Naphade answered,

“I am only trying to put forth that the appointments of Civil Judges to the post of District Judges are done ONLY by way of promotion and not by any other way and that in itself is wrong.”

He further added that denying judicial officers the opportunity to be directly appointed is unfair and against the principles of Right to Equality as laid down in our Constitution in terms of Article 14.

That’s untrue”, the Bench observed unanimously.

Further, Justice Arun Mishra stated that the reason for having seven years ‘practice as an eligibility criteria was in order to curb other floodgates from opening.

Justice Ravindra Bhat exemplified this observation by stating that if this eligibility criteria were done away with, people with no practice experience at the Bar, such as law officers, shall become eligible to take the examination. In that case, the purpose of the Article would be defeated.

Senior Advocate PS Patwalia submitted that the question of “continued practice” in light of eligibility must also be taken into account by the Bench. The Bench noted his submissions and assured him that the same shall be done.

A counsel appearing on behalf of the petitioner cited two judgements in order to reiterate the Chandra Mohan judgment. He specifically contended that in light of the above, advocates in-service would be excluded from this eligibility, which was unfair.

To this, Justice Arun Mishra asserted ,

“What prompted you to become a Civil judge? You should have practiced for 7 years. Earned lucrative money. Have guts!”

Afterwards, various lawyers made brief submissions vis-à-vis the facts of their cases.

Lastly, to conclude arguments on the petitioners’ side, it was contended by an advocate that the eligibility of seven years would also mean to allow a “Junior” to sit over his “Senior”.

Justice Ravindra Bhat, at this juncture, expressed his discontent.

“What do you mean Junior? He has practiced for 7 years! He has done what you have not. He has run around the courts, registries.”

Senior Advocate A Mariarputham then began his arguments on behalf of the Delhi High Court. While contending that the quota reserved for Advocates specifically applied to those advocates who had been practicing for at least seven years and debarred all others, he argued that the consistent view of the courts vis-à-vis the bar on judicial officers in terms of Article 233(2) of the Constitution must be taken into account.

He cited several judgments to substantiate this dichotomy which, according to him, had been consistently upheld.

Senior Advocate Jaideep Gupta also submitted that Article 14 could not apply in the present case, as a person who chose to enter the judicial services would be bound by those working rules.

Justice Ravindra Bhat agreed with him on this point.

“That’s true, one cannot shift from ladder to ladder as one pleases.”

Advocate Prashant Bhushan insisted that he may be allowed to put forth his rejoinder arguments.

Bhushan concluded by submitting that Article 233(2) could not create a bar on in-service officers to take the higher judiciary exams.

With the Bench directing all advocates who did not make oral submissions to hand over their written submissions, today’s hearing concluded and judgment was reserved.

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