Today, on 24th September, the Supreme Court, led by CJI BR Gavai, heard a case regarding whether judges with prior advocacy experience qualify under the advocates’ quota for District Judge appointments. Senior counsels stressed Article 233 protects both promotion and direct recruitment streams, ensuring judicial independence.
New Delhi: A Constitution Bench of the Supreme Court of India, headed by Chief Justice of India BR Gavai, heard the case today. The case primarily examines whether judicial officers who have prior experience as advocates can claim eligibility under the advocates’ quota for appointment as District Judges.
During the proceedings, counsel argued that
“the source of appointment would be 233 (2) of district judge. 233 (1) is a mere declaration. This argument was raised even in Dheeraj More’s case. Article 233 (1) is not a source of appointment.”
Highlighting the significance of maintaining judicial independence, another counsel added,
“The Governor alone is required to consult the High Court, free from state interference meant to safeguard judicial independence, not to serve as an appointment source, as clarified in Chandra Mohan.”
Chief Justice BR Gavai noted the constitutional balance in appointments, stating,
“Once the judgment on selection of judges is excluded, it means the Governor has to act on the aid and advice of the Council of Ministers.”
Emphasizing the purpose of Article 233, counsel remarked,
“Article 233 is not a source of appointment; it only safeguards the independence of the judiciary. The judiciary is meant to remain entirely free from the control of the State government.”
Counsel further raised practical concerns regarding eligibility, saying,
“Somebody may practice in HC for 5 years and then leaves work in a bank and then again comes back and practices for 9 years. The requirement is 10 years so now is he not eligible.”
Senior Advocate Gopal Sankarnarayanan, representing petitioners who are civil judges not allowed to appear in direct District Judge exams but who had obtained interim relief from the High Court, said,
“I’ll rely only on Chandra Mohan and Rameshwar Dayal from SCR, the rest from SCC. I appear for petitioners civil judges who weren’t allowed to sit for direct District Judge exams but got interim relief from the HC. Petitioner Madhukar Singh topped the 2014 exam, Krishna Kumar topped in 2016, yet their pleas were dismissed citing Satyanarayan Singh (1988) and Deepak Agarwal. The issue now comes squarely under Article 233.”
He further clarified the combined eligibility of service and advocacy, stating,
“Whether a civil judge with seven years in service, or a mix of seven years split between practice as an advocate and service as a judge, qualifies for appointment? My clients fit this category they each possess the requisite combined seven years at the Bar and on the Bench.”
Explaining the historical background, Gopal S. said,
“The history of the provision shows that District Judges have always come from two streams civil service and the Bar. Under the 1935 Act, both serving officers and those with 5 years at the Bar were eligible. The Constitution raised this to 7 years but retained both streams.”
He added,
“The Shetty Commission noted the frustration among civil judges at being barred from direct recruitment and recommended allowing them to compete, warning that exclusion caused stagnation and deterred talented lawyers. Thus, Article 233 preserves both streams Bar and Service and any interpretation excluding one contradicts the Constitution, its history, and purpose.”
On constitutional interpretation, he elaborated,
“Article 233 sets qualifications for District Judges covering both direct recruitment and promotion. Restricting it to seven years as an advocate would bar civil judges from promotion, which is incorrect. If Article 233(2) includes civil judges, rules cannot exclude them by limiting direct recruitment to advocates such rules violate the Constitution. Departmental exams cannot replace the constitutional direct recruitment stream.”
Senior Advocate Menaka Guruswamy, representing petitioner Manglesh Chaubey, said,
“I represent petitioner Manglesh Chaubey, who enrolled at the Bar in 2008, became a Civil Judge in 2011, and was promoted to Senior Division in 2016. He filed a petition to appear in direct recruitment exams for District Judges. In 2019, following the larger Bench’s reference in Dheeraj Mor, he took the Haryana exam, secured second rank, and was called for the viva by the Punjab and Haryana HC. After the 2020 Dheeraj Mor decision, he was barred from appearing in the viva.”
Providing context about the subordinate judiciary, Guruswamy stated,
“To give context, India’s subordinate judiciary has 25,870 sanctioned posts about 10,000 Civil Judge, 6,000 Civil Judge, and 8,000 District Judges with 4,789 currently vacant. Today’s cases concern not just individuals but the careers of judges forming the backbone of this system.”
She further highlighted the constitutional framework, saying,
“The framers were clear: the Supreme Court and High Courts form an integrated system with jurisdiction over constitutional, civil, and criminal matters, removing procedural diversity. Article 233 must be read in harmony with Articles 124 and 217 and Article 235. In short, Article 233 must be interpreted as part of a unified judicial structure, consistent with Articles 124, 217, and 235, reflecting the framers intent.”
Senior Advocate CU Singh added,
“For over 60 years, Article 233 has been interpreted consistently. Two Constitution Bench rulings, later amplified by 3 judge benches in 1985 and 1999, established two sources under Article 233, promotion and direct recruitment from practicing advocates. Dheeraj Mor did not introduce new law it merely reiterated what was held in Satya Narayan, Shushma Suri, and All India Judges.”
He also noted,
“Dheeraj Mor arose only because earlier 2-judge benches deviated from settled law. The principle of stare decisis applies.”
Chief Justice Gavai responded,
“If a Constitution Bench judgment has been misinterpreted by 3 judge benches, can’t another Constitution Bench decide its correctness? Accepting your argument would have watered down Keshavananda Bharathi.”
Singh countered,
“Unless there’s a glaring error or something that shocks the court’s conscience, consistent interpretation should generally stand.”
On the operational aspect of appointments, Singh explained,
“Article 233 provides two sources of recruitment but doesn’t specify how they operate. The methodology is for the executive, in consultation with the High Court, to decide via statutory rules. My argument isn’t that rules interpret the Constitution only that unless the rules are found ultra vires and struck down, they govern the manner of operation.”
He further clarified,
“233 only lays down the sources and nothing more and nothing less and the implementation is the pure prerogative of HC.”
Regarding statutory rules, Singh stated,
“These rules have been framed under 309 and they hold the field unless Your Lordships strike them down.”
A counsel representing the Punjab and Haryana High Court added,
“I appear for the Punjab and Haryana High Court. 233 (1) and (2) both speak of appointment. Sub Section (1) refers to promotion and (2) is dealing with direct recruitment. (1) is for those who are in service and (2) is for those who are not in service.”
The hearing concluded for the day, with further arguments expected in the continuation of the Constitution Bench proceedings.
Case Title:
Rejanish K.V. v. K. Deepa & Ors (C.A. No. 3947/2020)
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