Today, On 23rd September, Supreme Court debates whether judicial officers with seven or more years of experience under the Bar vacancies, can be eligible for direct recruitment as District Judges. The hearing focused on interpretation of Article 233 and past legal precedents.
New Delhi: The Supreme Court began hearings on a crucial legal issue regarding whether judicial officers who have practiced as advocates for seven years before joining the bench can be appointed as district judges for vacancies designated for the Bar.
A five-judge Constitution bench, consisting of Chief Justice BR Gavai and Justices MM Sundresh, Aravind Kumar, SC Sharma, and K Vinod Chandran, is reviewing 30 petitions that could significantly impact judicial recruitment nationwide.
The bench is analysing the interpretation of Article 233 of the Constitution, which governs the appointment of district judges.
As stated in Article 233,
“Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.”
The article specifies that “a person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the high court for appointment.”
Senior advocate Jayant Bhushan, representing a group of civil judges who were excluded from direct recruitment examinations for district judge positions, initiated the arguments. He contended that numerous judicial officers, despite having seven years of advocacy experience prior to joining the subordinate judiciary, were barred from applying for the Bar quota.
Their petitions to various high courts were dismissed based on earlier rulings.
Bhushan argued,
“The issue has now culminated into a constitutional interpretation question of great importance.”
He outlined four key questions for consideration, starting with whether a judicial officer who has completed seven years at the Bar before entering judicial service can be appointed as an Additional District Judge against Bar quota vacancies.
He further questioned whether eligibility for district judge appointments should be evaluated at the application stage, the appointment stage, or both.
The third issue concerns whether Article 233(2) establishes separate eligibility criteria for individuals already serving in judicial positions.
Lastly, he inquired whether a combined period of seven years as both an advocate and a judicial officer qualifies a candidate for district judge appointments.
Bhushan referenced the Indian Civil Services Act of 1861 and debates from the constituent assembly to trace the historical context of district judge appointments.
Senior Advocate PS Patwalia appeared before the court and made crucial submissions regarding the interpretation of statutory language in judge appointments.
He said,
“Referring to Deepak Aggarwal, if Your Lordships decide Question 4 in our favor, the matter is settled.”
Patwalia explained the importance of precise language, focusing on the difference between “has been” and “is.”
He argued that the phrase “has been” is often interpreted as a continuing status, but it actually refers to a past situation and does not imply it continues in the present unless followed by a participle like ‘being.’”
He contrasted this with the word “is,” which clearly indicates a current status. Patwalia noted that many statutes appointing judges as tribunal chairpersons specifically use the term “has been a judge.”
He warned that accepting the opposing interpretation would wrongly suggest that even sitting judges could qualify automatically for such posts.
During the hearing, the counsel also emphasized issues related to quota and selection.
The counsel stated,
“The quota is not created as interpreted in Dheeraj More.”
He further added,
“I am appearing for candidates who were advocates for 7 years and got selected and then again sat for selection.”
The counsel highlighted that the precedent set in Dheeraj More placed undue importance on quota, which, according to him, “is not a constitutional requirement. Where did that come from?”
Earlier, On September 12, the Chief Justice-led bench indicated that it would begin hearing the issues on September 23 and continue arguments over three days until September 25.
The bench noted that it would need to determine whether the combined experience of practicing law and subsequent judicial service should count toward eligibility. However, the Chief Justice cautioned against interpretations that could allow someone with only two years of practice to qualify.
The positions of Additional District Judges, part of the higher judicial service, are filled through promotions from lower judicial officers and direct recruitment from lawyers with at least seven years of Bar experience.
The current debate centers on whether a lower judicial officer can apply for ADJ posts under the direct recruitment quota intended for lawyers and whether their seven years of experience as either a judicial officer or a lawyer, or both, can be considered.
Earlier, On August 12, a three-judge bench, led by the Chief Justice, referred these questions to a five-judge Constitution bench for consideration.
The top court made this referral while reviewing an appeal against a Kerala High Court ruling that overturned the appointment of a district judge on the grounds that he was not a practicing advocate at the time of his appointment and was part of the judicial service.
The petitioner was a practicing lawyer with seven years of experience at the Bar when he applied for the district judge position.
Case Title: REJANISH K.V. vs. K. DEEPA
Case Number: Civil Appeal No(s). 3947/2020
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