FACTS
The petitioner, Rejanish K.V., had been practicing as an advocate in Kerala for over seven years. After he was appointed as a Munsiff-Magistrate in 2017, he was informed of his selection to the post of District Judge in 2019. Following this, Deepa challenged the legality of his appointment because he was not eligible for selection under the Bar quota, as he was no longer a practicing advocate when the appointment took place. During the time of appointment, he was a judicial officer, and that is why he could only become a District Judge through promotions. She relied on Article 233 (2) of the Constitution. Following this, the Supreme Court referred to a five-judge Constitution Bench the issue of judicial officers’ promotion structure and eligibility for direct recruitment as District Judges under the Bar quota.
ISSUES
- Whether a judicial officer who has already completed seven years in the Bar, being recruited for subordinate judicial services, would be entitled to appointment as an Additional District Judge against the Bar vacancy?
- Whether the eligibility for appointment as a District Judge is to be seen only at the time of appointment, or at the time of application, or both?
LEGAL PROVISIONS
Article 233 (1) of the Constitution is a provision providing for the appointment of persons as district judges in a State, as well as for their posting and promotions.
Article 233 (2) states that for the appointment of a person to the post of district judge, two streams are provided: a person not already in the service of the Union or of the State; and an advocate or a pleader if he has been an advocate or a pleader for not less than seven years.
ARGUMENTS
PETITIONER
The petitioner argued that the judgment given in the Dheeraj Mor case is erroneous, as it misreads Article 233(2) of the Constitution. The court in this case held that a person has to be presently an advocate or a pleader to be eligible. [Dheeraj Mor v. High Court of Delhi (2020) 7 SCC 401]. It is argued that this interpretation, which excludes Civil Judges from being eligible to be appointed directly as district judges, is unreasonable and against the interests of the administration of justice. A person in judicial service would be more experienced and suitable. Any exclusion would violate Articles 14 and 16 of the Constitution.
They also highlighted that there is no requirement for any period of time that a Civil Judge must possess to be eligible for direct recruitment as a district judge. But if there has to be such a requirement, then seven years’ experience as a Civil Judge or combined experience of seven years as an advocate and a Civil Judge would be sufficient.
The use of the words “has been” in Article 233(2) means a state of affairs that had existed in the past and need not be continuing in the present. The finding that the candidate must be continuing as an advocate on the date of application in the Deepak Aggarwal case is in the nature of obiter dicta and not ratio decidendi. [Deepak Aggarwal v. Keshav Kaushik and Others (2013) 5 SCC 277]
RESPONDENTS
The interpretation of Article 233 of the Constitution has been uniform for the past 65 years. Various judgments have interpreted Article 233 as a provision that gives two sources of recruitment to the post of district judges and that direct recruitment is only from the stream of practicing advocates. [Deepak Aggarwal v. Keshav Kaushik and Others (2013) 5 SCC 277]
In the case of the All India Judges’ Association, the court directed a quota of 75:25 for recruitment to the posts in all states, with 25% being exclusively reserved for eligible advocates. Given these judgments, the principle of stare decisis should be upheld. [All India Judges’ Association and Others v. Union of India and Others (2002) 4 SCC 247]
The term “service” has been held to mean judicial service. Article 233 (2) distinguishes those who are already in service from those who are not. [Chandra Mohan v. State of Uttar Pradesh and Others 1966 SCC OnLine SC 35]. A person in judicial service cannot simultaneously be a practicing advocate and is, therefore, not eligible for appointment against the quota reserved for advocates. The requirement of having seven years of practice refers to a continuous state of affairs. Thus, Article 233 (2) does not specifically provide for direct recruitment for those in service, and it should not be read into the clause.
ANALYSIS
The court emphasized the need for purposive interpretation. It is observed that a statute must be interpreted as a whole within the given context and not clause by clause. The court highlighted that Article 233 (1) covers appointments, promotions, and postings. It relied on the case of Kuseswar Saikia, stating that when a subordinate judge is promoted to the post of District Judge, that promotion is made under Article 233 (1). [State of Assam and Another v. Kuseswar Saikia and Others (1969) 3 SCC 505]
It then observed that Article 233(2) does not disqualify in-service judicial officers, as holding so would negate the first part of Article 233(2). It held that it sets qualifications for those not in service, and it does not restrict those already in service from applying. It reaffirmed the case of Rameshwar Dayal, which held that clause (2) provides a qualification for a candidate who is an advocate, whereas it does not provide a qualification for an in-service candidate. [Rameshwar Dayal v. State of Punjab, (1961) 2 SCR 874]
The court referred to the Shetty Commission, which recorded that a majority of high courts and the service associations were of the view that the service judges should be given an opportunity for direct recruitment as district judges. It stated that the experience the judicial officers gain is much greater than what advocates gain from legal practice. Based on this, there is no rationale to disallow them from getting recruited directly.
JUDGMENT
Following the above reasoning, the court held that judicial officers who have already completed seven years in the Bar before they were recruited in the subordinate judicial service would be entitled to be appointed as District Judge/Additional District Judge in the direct recruitment process. The eligibility is to be seen at the time of application. Even though there is no eligibility prescribed under Article 233 (2) for in-service officers, to provide a level playing field, the court directed an in-service candidate to have seven years’ combined experience as a Judicial Officer and an advocate. For the same reason, it also indicated that the minimum age for being considered and appointed for both advocates and Judicial Officers would be 35 years of age as of the date of application.
CONCLUSION
The court overruled the Dheeraj Mor case, emphasizing the need to promote efficiency and attract young talent to the higher judiciary. It applied the doctrine of a level playing field and observed that meritorious judicial officers should not be denied the opportunity to compete with advocates. The court, while acknowledging that Article 233 (2) does not provide for this interpretation, highlighted the need to have a purposive interpretation of Article 233 as a whole. This judgment truly addresses decades of frustration faced by civil judges and provides a balanced solution that provides an opportunity to meritorious candidates, irrespective of their being in-service or out of service.
Click here to read more: Rejanish K.V. v. K.Deepa & Ors.
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WRITTEN BY: FARZEEN ZAMAN
