Munsiff-Magistrate Trainee Can't Be Appointed As District Judge By Direct Recruitment From Bar: Kerala High Court

“Having considered the contentions advanced, we notice that the finding of the Apex Court in Dheeraj Mor's case is specifically that an advocate or a pleader with seven years of practice can be appointed as District Judge by way of direct recruitment from the Bar only in case he is not already in the judicial service of the Union or State. It was further held that for the purpose of Article 233(2), an advocate has to be continuing in practice for not less than seven years as on the cut off date and at the time of appointment as District Judge. It is specifically held that the right to participate in a selection is guaranteed only if the candidate fulfills the requisite eligibility criteria on the stipulated date. The ratio being that only a practising advocate can apply to the post and that the eligibility should be continuing even as on the date of the appointment, we are of the opinion that the factual situation available in the instant case would not permit the consideration of the application of the appellant herein for appointment as District and Sessions Judge under the quota set apart for direct recruitment from the Bar.”

The appellant was a practicing advocate who cleared the selection for Munsiff-Magistrate Exam and was appointed as Munsiff- Magistrate trainee. She commenced her pre-induction training at the Kerala Judicial Academy. Meanwhile, she applied for the post of District and Sessions Judge in the Kerala State Higher Judicial Service by direct recruitment from the Bar. The appellant appeared for the written exam but was informed that she was excluded from the list for viva-voce. This was challenged in a writ petition and an interim order was passed rejecting her prayer for inclusion in the list for viva-voce by relying upon the Apex Court decision in Dheeraj Mor (supra).  This interim order was challenged by way of a writ appeal.

The Counsel for the appellant submitted that the appellant was a trainee only as part of the pre-induction training and cannot be treated as a judicial officer or in the service of the State as a judicial officer. It was contended that she was eligible to participate in the selection process as a practising advocate. The Counsel also relied upon the decision in Unnikrishnan v. State of Kerala (2023) to argue that an incumbent who was appointed as a Munsiff-Magistrate trainee was not a judicial officer and was eligible to participate in the selection process for appointment of District Judge in the quota set apart for direct appointments from the Bar.

The Counsel for the respondents relied upon the Apex Court decision in Dheeraj Mor (supra) and argued that only a practising advocate would be eligible to apply to the post of District and Sessions Judge against quota for advocates. It was contended that the appellant was a Munsiff Magistrate trainee on the date of submission of the application and not a practising advocate. It was argued that when the appellant was appointed as Munsiff-Magistrate trainee, she had to suspend her practice as per Rule 5(1) of Chapter III of the Bar Council of India Rules.

It was further argued that facts in Unnikrishnan (supra) are distinguishable inasmuch as the candidate therein participated in the selection process with permission of the High Court and on being selected he discontinued his Munisff-Magistrate training. It was submitted that he had lien to the post of Assistant Public Prosecutor and went back to working there while being appointed as District Judge. Relying upon Saumya v. State of Kerala (2022), it was submitted that a person who takes up full-time government employment cannot have a legal right to practice as an advocate and cannot be treated as a member of the Bar.

The Court noted that the Apex Court in Dheeraj Mor (supra) has clearly stated that only an advocate or a pleader with seven years of practice can be appointed as District Judge in quota set apart for advocates by way of direct recruitment. The Court also referred to Article 232 (2) to state that an advocate or pleader has to be continuing in practice for not less than seven years for applying to the post of District and Sessions Judges. It held that only practising advocates with continuing practice of not less than seven years were eligible to apply and noted that such eligibility should also continue on the date of appointment also.

On the above observations, the Court noted that the reliefs sought by the appellant cannot be granted.

Counsel for the petitioner: Senior Advocate S. Sreekumar, Advocate Harikrishnan S

Counsel for the respondents: Advocates B. G. Harindranath, Amith Krishnan H. and State Attorney N. Manoj Kumar

Citation: 2023 LiveLaw (Ker) 639

Case title: Lilly Krishnan v State of Kerala

Case number: WA NO.1808 OF 2023 and WP(C) NO.33285 OF 2023

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