"Three Judge Bench Or Five Judge Bench?": Supreme Court Agrees To Hear In Open Court The Review Pleas On Judgment Barring Civil Judges From Applying For District Judges Post

The bench of Justices L. Nageswara Rao, Vineet Saran and Ravindra Bhat on Monday listed the matters to be taken up for hearing after the vacations.

The issue whether Civil Judges can seek direct recruitment to the post of District Judges against the quota reserved for candidates from Bar was referred to a larger bench in the case Dheeraj Mor v High Court of Delhi.

Observing that the case involved a substantial question of law regarding interpretation of Article 233 of the Constitution, a division bench comprising Justices Kurian Joseph and Mohan M Shantanagoudar had made the reference on January 23, 2018.Subsequently, in February, 2020, a three-judge bench of Justices Arun Mishra, Saran and Bhat had held that civil judges are not eligible to seek direct recruitment to post of District Judges in bar quota.

On Monday, Senior Advocate Jayant Bhushan, appearing for one of the review petitioners, raised a jurisdictional issue as a ground for review, in so far as the matter had been heard by a three-judge bench after the reference order-

"After the reference order of January 23, 2018, the matter should be heard by a bench of five judges and not three. This goes to the root of the matter"

Mr. Bhushan indicated that in the reference order, the division bench, having regard to the contentions and the materials placed before it and having regard to the ratio and observations in the cases indicated in the order, "some of which (as the bench said) are apparently diverse", was 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", Mr. Bhushan indicated on Monday as the bench had then directed.

The senior counsel drew the bench's attention to Article 145(3) in as much as it provides that the minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of the Constitution or for the purpose of hearing any reference under Article 143 shall be five. Mr. Bhushan stressed that the Article provides that where the Court consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution, such Court shall refer the question for opinion to a Court constituted as required by clause (3) of Article 145.

"'Appropriate bench' in this case was to be a 5-judge bench...If a mistake is made of not placing it before a 5-judge bench, Your Lordships may do so in review", Mr. Bhushan pleaded.

He indicated that Article 145 has been interpreted recently in 2020 in Shrimanth Balasaheb Patil's case- "The court has said that the interpretation of the Constitution arises in a large number of cases, and therefore, all cannot go to a constitution bench. It was held that certain requirements should be present for such a reference- if the point of interpretation of the Constitution is not central or fundamental to the issue at hand but only incidental, then 145(3) would not apply. If previous benches have already decided the question and the issue arising is squarely covered, then it would not apply. But if there is no authoritative pronouncement on the issue or if the bench feels that there is no authoritative pronouncement, then a reference has to be made"

Justice Bhat pointed out that this argument had never been raised at that point. "My briefing counsel had argued this point then and raised it. There was another advocate who had filed written submissions also raising the same issue. The review bench can also take note of this and place it before a bench of five judges. The issue involved an important question of law as regards the interpretation of article 233. It was supposed to be listed before an appropriate bench which could have been a five judge bench only", responded Mr. Bhushan

Justice Bhat observed that the reference bench, in the instant case, had only said that there is a seeming conflict. "It did not say that interpretation of a constitutional provision is involved. There was no doubting of a Constitution bench decision. There was no mention of any decision being right or wrong. The reference bench had noted that Justice Chelameswar's judgement was on a different note (In 2016, a bench headed by Justice J. Chelameswar had held that an in-service judge need not resign from post to participate in the selection process of District Judge through direct recruitment method. However, the judgment was only on the point of eligibility to participate in the selection process and did not express anything on the eligibility for appointment) Otherwise, all other judgements are fairly consistent", said the judge.

"This might not fall in a 145(3) issue. There are 2 5-judge bench decisions on this. This is an already-trodden ground. The limited question (in the reference) was whether eligibility for appointment as a district judge has to be seen at the time of application also or only when appointment matures", continued the judge.

Justice Bhat pointed out that this argument that the matter ought to have been heard by a five-judge bench, if raised before the three-judge bench in 2020, should be brought on record by the concerned advocate stating that they had argued the point but it was not considered.

"Mr Ajay Kumar Singh, who is my briefing counsel, can file an affidavit that he had raised this issue in his arguments", replied Mr. Bhushan.

Advocate Aljo K Joseph also advanced that it was in the opening argument by senior advocate Vibha Datta Makhija where it was requested that the matter be heard by a five judge bench. "I was personally present in the court then. I had witnessed all this. My writ petition was also listed then", he advanced.

"You file an affidavit. Also, see if Ms Makhija wishes to do so. Don't make submissions on her behalf. We will issue notice. If there is no urgency, we will take it after the vacation. If you wish to file the affidavit, then do so", said Justice Rao.

"Anyway, whether it was argued or not, if the Constitution says that a matter is to be heard by a five judge bench and it is heard by three, that is a ground for review", pressed Mr. Bhushan.

"Also, there is error apparent on the face of record- Rameshwar Dayal and Chandra Mohan have been misinterpreted by the court. There is error apparent on the merits of the matter in construing the earlier Constitution Bench judgement", pressed Mr. Bhushan.

"If civil judges plus 7 years as advocate are allowed in the direct recruitment quota, then they will compete with the fresh graduates and the quota for the fresh graduates would go down...", explained Justice Bhat.

"We will list the matter in open court. Then you have to convince us", said Justice Rao.