Can persons in judicial service be appointed District judges by direct recruitment? Supreme Court to decide

The Supreme Court will decide whether persons in judicial service can be directly appointed as District judges based on his/her experience at the Bar and without having to go through ‘promotions through the rank’..In an appeal against a judgment of the Delhi High Court, the petitioners have sought for appointment as District judges on the ground that they fulfil the criteria of seven years’ experience prescribed by Article 233 of the Constitution..Senior Advocates Kapil Sibal and Aryama Sundaram are representing two candidates (Petitioners) who cleared the exam for appointment as District judges but were subsequently not allowed to attend the interview because they were members of judicial service and had applied based on their experience at the Bar before they entered service. Advocate ADN Rao appeared for the Delhi High Court..The case involves an important question of law – whether Article 233 (2) of the Constitution of India debars persons already in judicial service for appointment as district judges by way of direct recruitment and not promotion..One of the petitioners, Dheeraj Mor, has contended that as per the decision in Rameshwar Dayal’s case, for a person to be appointed as a district judge from the Bar, he need not be an advocate ‘in presenti.’ The petition states that the High Court in its judgement, wrongly concluded that,.“..as per Article 233 of the Constitution, person in judicial service can be appointed as a district judge by way of promotion only….the High Court in violation of Chandra Mohan’s case has wrongly interpreted that Article 233 of the Constitution by holding the same to have compartmentalization of the said two sources by way of appointment by promotion and appointment by way of direct recruitment. The aforesaid compartmentalization is neither existent nor warranted in the said Article…it merely provides for the appointment of district judges irrespective of either of the aforesaid methods/ modes.”.Mor has submitted that since one of the sources from where District judges are appointed is lower judiciary, such persons can be appointed to as District judges irrespective of the method of appointment i.e. either by promotion or by direct recruitment. The Petitioner has contended that the High Court wrongly interpreted the negative covenant in Article 233(2) by holding that the said covenant would mean that a person who is in judicial service will not be eligible to be appointed as a direct recruit..As per the petition,.“…the provision of Article 233(2) of the Constitution of India makes it abundantly clear that a person not already in service of the Union or of a State becomes eligible for appointment as a district judge only if he has been an advocate or a pleader for at least seven years. However, if a person, who had already been an advocate or a pleader for at least seven years before joining judicial service, he does not become disqualified to be appointed as a district judge merely he has joined the said service. After having gained the experience of at least seven years as an advocate or a pleader and then joining the judicial service cannot be considered as a disqualification. Once a person is eligible for appointment as a district judge, he/she does not lose his/her qualification simply by joining the judicial service. By joining the judicial service after seven years of practice, a person becomes more qualified and experienced as compared to a person who has simply seven years of experience as an advocate or a pleader.”.Mor has contended that if Article 233(2) is interpreted as per the High Court judgment, then it would be arbitrary and amount to an unjust classification and would be violative of Article 14. As an interim measure, Mor has prayed for a direction to the Delhi High Court to permit him to appear for the viva voce and appoint him to the Delhi Higher Judicial Service if found qualified..The Court posted the matter for hearing on a non-miscellaneous day after August 15.

Can persons in judicial service be appointed District judges by direct recruitment? Supreme Court to decide

Murali Krishnan

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