REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE/ORIGINAL JURISDICTION

SPECIAL LEAVE PETITION (C) NO.14156/2015

DHEERAJ MOR                                        PETITIONER(S)                                 VERSUS HON'BLE HIGH COURT OF DELHI                        RESPONDENT(S)

WITH SLP(C) No. 14676/2015, SLP(C) No. 24219/2015,  SLP(C) No. 30556/2015, W.P.(C) No. 77/2016,  W.P.(C) No. 130/2016, W.P.(C) No. 171/2016, W.P.(C) No. 405/2016, SLP(C) No. 15764/2016, W.P.(C) No. 414/2016, W.P.(C) No. 423/2016,  

SLP(C) No. 23823/2016, S.L.P.(C)...CC No. 15018/2016, SLP(C) No. 24506/2016, S.L.P.(C)...CC No. 15304/2016,  

W.P.(C) No. 600/2016, W.P.(C) No. 598/2016,  W.P.(C) No. 601/2016, W.P.(C) No. 602/2016,  W.P.(C) No. 733/2016, W.P.(C) No. 189/2017,  W.P.(C) No. 222/2017, W.P.(C) No. 334/2017,  

W.P.(C) No. 1171/2017

O R D E R

1. The  issues  raised  in  these  petitions  pertain  to  the interpretation of Article 233 of the Constitution of India in the matter  of  appointment  of  District  Judges  by  way  of  direct recruitment. 2. The petitioners have raised mainly two contentions - (i) in case a candidate has completed  seven years of practice as an advocate, he/she shall be an eligible candidate despite the fact that on the date of the application/appointment, he/she is in the service of Union or State;  (ii) the members who are in judicial service as Civil Judge, Junior Division or Senior Division, in case

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they have completed seven years as Judicial Officers or seven years as  Judicial  Officer-cum-Advocate,  they  should  be  treated  as eligible candidates. 3. Extensive reference has been made to various judgments of this Court which pertain to Article 233 of Constitution of India. To provide a complete picture of the matter, we shall briefly discuss the relevant cases. 4. The case of  Rameshwar Dayal v.  State of Punjab and others  1 pertains to eligibility for appointment as District Judge counting also the period of practice in Lahore High Court, before partition. At  paragraphs  11  and  13,  this  Court  made  the  following observations:

“11. This is the background against which we have to consider  the  argument  of  learned  Counsel  for  the appellant.  Even  if  we  assume  without  finally pronouncing  on  their  correctness  that  learned Counsel is right in his first two submissions, viz., that  the  word  "  advocate"  in  Cl.  (2)  of     Art. 233     means an advocate of a Court in India and the appointee must be such an advocate at the time of his appointment, no objection on those grounds can be  raised  to  the  appointment  of  three  of  the respondents  who  were  factually  on  the  roll  of Advocates of the Punjab High Court at the time of their  appointment;  because  admittedly  they  were advocates in a Court in India and continued as such advocates till the dates of their appointment. The only, question with regard to them is whether they can count. in the period of seven years their period of practice in or under the Lahore High Court…”

xxx xxx xxx 13. …  It is perhaps necessary to add that we must not  be  understood  to  have  decided  that  the expression 'has been' must always mean what learned Counsel for the appellant says it means according to the strict rules of grammar. It may be seriously questioned  if  an  organic  Constitution  must  be  so narrowly  interpreted,  and  the  learned  Additional Solicitor-General has drawn our attention to other Articles  of  the  Constitution  like Art.  5(c) where in-the  context  the  expression  has  a  different meaning. Our attention has also been drawn to the decision  of  the  Allahabad  High  Court  in Mubarak

1   AIR 1961 SC 816

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follows :-

“3. … It is only in respect of the persons covered by the second clause that there is a requirement that a person shall be eligible for appointment as District  Judge  if  he  has  been  an  advocate  or  a pleader for not less than 7 years. In other words, in the case of candidates who are not members of a Judicial Service they must have been advocates or pleaders for not less than 7 years and they have to be recommended by the High Court before they may be appointed as District Judges,  while in the case of candidates who are members of a Judicial Service the 7 years’ rule has no application but there has to be consultation  with  the  High  Court.  A  clear distinction  is  made  between  the  two  sources  of recruitment and the dichotomy is maintained. The two streams  are  separate  until  they  come  together  by appointment.  Obviously  the  same  ship  cannot  sail both the streams simultaneously..”

(Emphasis Supplied)

In Satya Narain Singh (supra), the Court specifically referred to  Rameshwar Dayal (supra) to note that Article 233 is a self contained  provision  regarding  appointment  of  District  Judges. Finally, at paragraph 5, after discussing Chandra Mohan (supra), it was held that:

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

(Emphasis Supplied)

7. In  Deepak  Aggarwal v.  Keshav  Kaushik  and  Others.  4,  a

4  (2013) 5 SCC 277

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three-judge Bench of this Court held that the appellants did not cease  to  be  advocates  while  working  as  Assistant  District Attorney/Public Prosecutor/Deputy Advocate General. In arriving at this decision, this Court also dealt with the expression, “if he has been for not less than 7 years an advocate” in Article 233(2). Paragraphs 51 and 102 read as follows :-

“51.  From  the  above,  we  have  no  doubt  that  the expression, “the service” in Article 233(2) means the “judicial service”. Other members of the service of the Union or State are as it is excluded because Article 233 contemplates only two sources from which the District Judges can be appointed. These sources are:  (i)  judicial  service;  and  (ii)  the advocate/pleader or in other words from the Bar. The District  Judges  can,  thus,  be  appointed  from  no source other than judicial service or from amongst advocates.  Article  233(2)  excludes  appointment  of District  Judges  from  the  judicial  service  and restricts  eligibility  of  appointment  as  District Judges from amongst the advocates or pleaders having practice of not less than seven years and who have been recommended by the High Court as such.”

xxx xxx xxx

“102.  As  regards  construction  of  the  expression, “if he has been for not less than seven years an advocate” in Article 233(2) of the Constitution, we think  Mr  Prashant  Bhushan  was  right  in  his submission that this expression means seven years as  an  advocate  immediately  preceding  the application  and  not  seven  years  any  time  in  the past.  This  is  clear  by  use  of  “has  been”.  The present  perfect  continuous  tense  is  used  for  a position which began at sometime in the past and is still continuing. Therefore, one of the essential requirements articulated by the above expression in Article  233(2)  is  that  such  person  must  with requisite period be continuing as an advocate on the date of application.”

(Emphasis Supplied)

8. Vijay Kumar Mishra and Another. v. High Court of Judicature at Patna and Others.  5 is a case where an advertisement was issued

5  (2016) 9 SCC 313

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inviting  applications  from  eligible  advocates  for  direct recruitment  for  the  post  of  District  Judge.  Pursuant  to  the advertisement, the appellants appeared in the preliminary as well as main examination. In the meantime, the appellants qualified for the Subordinate Judicial Service of the State of Bihar and joined service in August, 2015. The result of the mains examination for the post of District Judge was declared in January, 2016 and the appellants  qualified  for  the  same.  However,  they  were  denied permission by the Registrar General of Patna High Court to appear for the interview in view of Article 233(2) of the Constitution, as they were already in the State Subordinate Judicial Service. To quote Chelameswar, J. :-

“7. It is well settled in service law that there is a  distinction  between  selection  and  appointment. Every  person  who  is  successful  in  the  selection process undertaken by the State for the purpose of filling up of certain posts under the State does not acquire  any  right  to  be  appointed  automatically. Textually,  Article  233(2)  only  prohibits  the appointment  of  a  person  who  is  already  in  the service  of  the  Union  or  the  State,  but  not  the selection  of  such  a  person.  The  right  of  such  a person  to  participate  in  the  selection  process undertaken by the State for appointment to any post in  public  service  (subject  to  other  rational prescriptions  regarding  the  eligibility  for participating in the selection process such as age, educational qualification, etc.) and be considered is  guaranteed  under  Articles  14  and  16  of  the Constitution.

8.  The text of Article 233(2) only prohibits the appointment of a person as a District Judge, if such person is already in the service of either the Union or the State. It does not prohibit the consideration of the candidature of a person who is in the service of the Union or the State. A person who is in the service of either the Union or the State would still have the option, if selected, to join the service as a  District  Judge  or  continue  with  his  existing employment. Compelling a person to resign from his job  even  for  the  purpose  of  assessing  his suitability for appointment as a District Judge, in our opinion, is not permitted either by the text of Article 233(2) nor contemplated under the scheme of

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the  Constitution  as  it  would  not  serve  any constitutionally desirable purpose.”

(Emphasis Supplied) 9. This Court  took note of the judgment in  Satya Narain Singh (supra) but distinguished it holding that:

“10. In first of the abovementioned judgments, the appellant-petitioners before this Court were members of the Uttar Pradesh Judicial Service. In response to an advertisement by the High Court, they applied to be appointed by direct recruitment to the Uttar Pradesh Higher Judicial Service (District Judges). It  appears  from  the  judgment  “as  there  was  a question about the eligibility of the members of the Uttar  Pradesh  Judicial  Service  to  appointment  by direct recruitment to the higher Judicial Service …” (Satya Narain case, SCC p. 227, para 1), some of them  approached  the  High  Court  by  way  of  writ petitions which were dismissed and therefore, they approached this Court. It is not very clear from the judgment,  as  to  how  the  question  about  their eligibility arose and at what stage it arose. But the fact remains, by virtue of an interim order of this  Court,  they  were  allowed  to  appear  in  the examination. The argument before this Court was that all the petitioners had practised for a period of seven  years  before  their  joining  the  Subordinate Judicial Service, and therefore, they are entitled to be considered for appointment as District Judges notwithstanding the fact that they were already in the Judicial Service.

11. It appears from the reading of the judgment in Satya  Narain  Singh  case that  the  case  of  the petitioners was that their claims for appointment to the post of District Judges be considered under the category of members of the Bar who had completed seven years of practice ignoring the fact that they were already in the Judicial Service. The said fact operates as a bar undoubtedly under Article 233(2) for  their    appointment   to  the  Higher  Judicial Service. It is in this context this Court rejected their claim. The question whether at what stage the bar comes into operation was not in issue before the Court nor did this Court go into that question.”

(Emphasis Supplied)

This  Court  also  held  that  the  decision  in  Deepak  Aggarwal

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(supra) had no relevance to the issue at hand.  

10. In the supplementing opinion, Sapre, J. made the following observations which are extremely pertinent in this context  :-

21.  Mr  Ranjit  Kumar,  Solicitor  General  of  India appearing  for  the  respondent  (High  Court),  however, contended that the word “  appointed  ” occurring in Article 233(2) of the Constitution should necessarily include the entire selection process starting from the date of submitting an application by the person concerned till the date of his appointment. It was his submission that if any such person is found to be in service of the Union or the State, as the case may be, on the date when he  has  applied  then  such  person  would  suffer disqualification prescribed in clause (2) of Article 233 and would neither be eligible to apply nor be eligible for appointment to the post of District Judge.

22.  This  submission  though  looks  attractive,  is  not acceptable.  Neither  the  text  of  Article  and  nor  the words  occurring  in  Article  233(2)  suggest  such interpretation. Indeed, if his argument is accepted, it would  be  against  the  spirit  of  Article  233(2).  My learned Brother for rejecting this argument has narrated the consequences, which are likely to arise in the event of accepting such argument and I agree with what he has narrated.

23. In my view, there lies a subtle distinction between the  words  “  selection  ”  and  “  appointment  ”  in  service jurisprudence. (See  Prafulla  Kumar  Swain v.  Prakash Chandra  Misra.)  When  the  Framers  of  the  Constitution have used the word “appointed” in clause (2) of Article 233 for determining the eligibility of a person with reference to his service then it is not possible to read the word “selection” or “recruitment” in its place. In other  words,  the  word  “appointed”  cannot  be  read  to include  the  word  “selection”,  “recruitment”  or “recruitment process”. 24. In my opinion, there is no bar for a person to apply for  the  post  of  District  Judge,  if  he  otherwise, satisfies  the  qualifications  prescribed  for  the  post while remaining in service of the 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  selection process  when  he  otherwise  fulfils  all  conditions prescribed in the advertisement by taking recourse to

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clause (2) of Article 233 would, in my opinion, amount to violating his right guaranteed under Articles 14 and 16 of the Constitution of India.”

   (Emphasis Supplied)

11. Some of the learned counsel have also invited our attention to All India Judges' Association and others  v. Union of India and others  6 , Shri Kumar Padma Prasad v. Union of India and others  7 and State of Assam v. Horizon Union and another  8.

12. In the order dated 03.04.2017 in  Sukhda Pritam and Anr v. Hon’ble High Court of Rajasthan and Anr which is one of the cases in the batch, there is also a reference to rules framed by certain states which provide that “in computing the period of seven years there shall be included a period during which he (a candidate) has held judicial office”. This is also an issue which is required to be considered. 13. In view of the various decisions of this Court, one major issue  arising  for  consideration  is  whether  the  eligibility  for appointment as district judge is to be seen only at the time of appointment or at the time of application or both. Thus, having regard to the contentions and the materials placed before us and having regard to the ratio and observations in the cases referred to above, some of which are apparently diverse, we are also of the view that these cases involve substantial questions of law as to the interpretation of Article 233 of the Constitution of India. Therefore, we are of the opinion that this matter should be placed before  Hon’ble  the  Chief  Justice  of  India  for  constituting  an appropriate Bench. 14. Learned counsel for the petitioners pointed out that all the petitioners herein, by virtue of interim orders, have appeared in the written examinations and in some cases they have also attended the  interview.  We  are  informed  that  in  some  of  the  cases, appointment of other eligible candidates is held up on account of pendency of these cases. 6  (2002) 4 SCC 247 7  (1992) 2 SCC 428 8  [1967] 1 SCR 484  

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15. The  Registry  may  seek  appropriate  orders  from  Hon’ble  the Chief Justice of India having regard to the special circumstances referred to above, for an early posting.

..........................J.               [KURIAN JOSEPH]  

..........................J.               [MOHAN M. SHANTANAGOUDAR]  

NEW DELHI; JANUARY 23, 2018.

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