Article 233- Judicial Officers Can't Apply & Compete For Direct Recruitment To Post Of District Judges: Allahabad High Court

The Allahabad High Court recently held that under Article 233 of the Constitution of India, a Judicial Officer, regardless of his or her previous experience, as an Advocate with 7 years practice, cannot apply and compete for appointment to any vacancy in the post of District Judge.

The Bench of Justice Ashutosh Srivastava and Justice Pritinker Diwaker further clarified that his or her (Judicial Officer) chance to occupy the post (of District judge) would be through promotion in accordance with the Rules framed under Article 233 and Proviso to Article 309 of the Constitution of India. 

The matter before the Court 

Essentially, the Bench was hearing the plea of 5 Judicial Officers who are members of the M.P. Judicial Services and working as Judicial Officers in the State of M.P.

They contended that even though they have 7 years of experience as an advocate, they can't apply for the post of District Judge since they are judicial officers, who have been barred under Rule 5 of the U.P. Higher Judicial Service Rules, 1975 from applying for direct recruitment.

They were aggrieved by Rule 5 of the U.P. Higher Judicial Service Rules, 1975 insofar as it bars the Judicial Officers from participating in the recruitment process for filing up the vacancies by direct recruitment for the post of district judges.

Therefore, they moved the Court seeking declaration of the 1975 Rules as unconstitutional to the extent that it excludes the persons possessing requisite experience in the field of law of more than 7 years cumulatively as an Advocate and as a Judicial Officer for being considered eligible to appear in the U.P.H.J.S. Exams.

Court's observations 

The Court, at the outset, noted that under the rule in question [Rule 5 of the 1975 Rules] the source of recruitment by promotion is confined to Judicial Officers [Civil Judge (Senior Division)] while the source of direct recruitment is confined to Advocates with not less than 7 years standing.

Further, the Court noted that Rules of 1975 have been framed in exercise of the power conferred by the Proviso to Article 309 read with Article 233 of the Constitution of India.

[NOTE: Article 309 of the Constitution of India deals with the recruitment and conditions of service of persons serving the Union or a State. Article 309 provides the competence for the Governor of a State or such person as he may direct to make the rules regulating the recruitment and the conditions of service of persons appointed to services and posts in connection with the affairs of the State. 

On the other hand, Article 233 of the Constitution of India deals with the appointment of District Judges.]

Against this backdrop, the Court relied upon the ruling of the Apex Court in the case of Dheeraj Mor Vs. Hon'ble High Court of Delhi, wherein it was held that that civil judges are not eligible to seek direct recruitment to post of District Judges in bar quota.

Eligibility under Article 233(2) of the Constitution requires 7 years of continuous practice. "Only practicing candidates can avail the quota. It is exclusively for them", the Supreme Court had held in this case.

"Article 233(2) nowhere provides eligibility of in-­service candidates for consideration as a District Judge concerning a post requiring 7 years' practice as an advocate or a pleader. Requirement of 7 years' experience for advocate or pleader is qualified with a rider that he should not be in the service of the Union or the State", the Court had said in its judgment.

The Court had also said that the practice referred to in Article 233(2) is "continuous practice" as not only on the cut-off date for the selection but also on the date of appointment.

"The requirement of 7 years of minimum experience has to be considered as the practising advocate as on the cut­off date, the phrase used is a continuous state of affair from the past. The context 'has been in practice' in which it has been used, it is apparent that the provisions refers to a person who has been an advocate or pleader not only on the cut­off date but continues to be so at the time of appointment", the Court had observed.

Further, the Court also referred to the Apex Court's ruling in the case of Deepak Aggarwal Vs. Keshav Kaushik and others [2013 (5) SCC 277] wherein it was held that one of the essential requirements articulated by the above expression in Article 233(2) is that such person must with requisite period be continuing as an advocate on the date of application.

In light of the aforesaid, the Court, while dismissing the plea, held thus:

"...under Article 233 of the Constitution of India, a Judicial Officer regardless of his or her previous experience, as an Advocate with 7 years practice, cannot apply and compete for appointment to any vacancy in the post of District Judge; his or her chance to occupy the post would be through promotion in accordance with the Rules framed under Article 233 and Proviso to Article 309 of the Constitution of India."

Case title - Shashank Singh And 4 Others v. Honble High Court Of Judicature At Allahabad And Another

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