Can Civil Judges Be Appointed Against District Judges Posts Reserved For Bar Candidates? SC Begins Hearing

On Tuesday, a Supreme Court bench comprising Justices Arun Mishra, Vineet Saran and S. Ravindra Bhat took up the reference regarding appointments of Civil Judges to the post of District Judges against the quota reserved for appointments directly from the Bar.

According to Article 233(2) of the Constitution of India, a person not already in the service of the Union or of a State becomes eligible for appointment as a District Judge only if he has been an advocate or a pleader for at least seven years. The Apex Court had previously allowed in-service judges to participate in the Higher Judicial Services Examination conducted by the High Courts and the State Public Service Commission.

Sr. Adv. Vibha Datta Makhija led the submissions of the Petitioners by quoting the 1985 judgement of Satya Narain Singh Etc. v. The High Court of Judicature Allahabad and Ors.

From the Satya Narain Case, the following paragraph was quoted:

"It is only in respect of the persons covered by the second clause of Article 233 that there is a requirement that a person shall be eligible for appointment as District Judge if he has been an advocate or a pleader for not less than 7 years. In other words, in the case of candidates who are not members of a Judicial Service they must have been advocates or pleaders for not less than 7 years and they have to be recommended by the High Court before they may be appointed as District Judges, while in the case of candidates who are members of a Judicial Service, the 7 years' rule has no application but there has to be consultation with the High Court. A clear distinction is made between the two sources of recruitment and the dichotomy is maintained. The two streams are separate until they come together by appointment. Obviously, the same ship cannot sail both the streams simultaneously."

Sr. Adv. Makhija also quoted from Justice Chelameswar's judgment in Vinay Kumar Mishra & Anr v High Court of Judicature at Patna and others :

"It is well settled in service law that there is a distinction between selection and appointment. Every person who is successful in the selection process undertaken by the State for the purpose of filling up of certain posts under the State does not acquire any right to be appointed automatically. Textually, Article 233(2) only prohibits the appointment of a person who is already in the service of the Union or the State, but not the selection of such a person. The right of such a person to participate in the selection process undertaken by the State for appointment to any post in public service (subject to other rational prescriptions regarding the eligibility for participating in the selection process such as age, educational qualification, etc.) and be considered is guaranteed under Articles 14 and 16 of the Constitution".

Justice Mishra, however, expressed reservations about the contention by stating that the definitions of 'appointment' and 'selection' were not relevant to the issue at hand. When Sr. Adv. Makhija attempted to emphasize the interpretation of Article 233(2), Justice Bhat stated that the interpretation was unacceptable as every recruitment process had to end in an appointment. He also noted that if an advocate had a cumulative experience of 7 years, he or she could have sat for the District Judge examination directly. To this, Sr. Adv. Makhija responded that the issue was about whether the pool of meritorious persons could be restricted.

Sr. Adv. Makhija also submitted that the biggest problem faced by the judiciary was the issue of being undermanned. She stated that this was not an adversarial litigation as the end goal was to look for a solution. While Justices Mishra and Bhat agreed, Justice Bhat added that in one instance 59 judicial officers had sat for the examination in Rajasthan against 48 vacancies. However, none of them cleared. The quality of the judiciary could not be compromised. Justice Mishra added that these were ground realities due to which the Bar had been suffering. He also stated that the judges did not even known English language and were writing Orders in Hindi.

Sr. Adv. Prashant Bhushan interjected at this point to state that the problem lied with nature of the evaluation of the exam. He stated that the evaluation should be independent and not in the hands of the lower judiciary. To this, Justice Saran stated that Bar quota and Service Quota existed, and both were distinguished by the Constitution.

On 10.05.2019, a Bench comprising of Justices Arun Mishra and Navin Sinha had held that "Nowhere it is provided that such in-service incumbents can stake their claim as against posts which are reserved for direct recruitment for the Bar." This was in the case Dheeraj Mor v Hon'ble High Court of Delhi.

The Court had also observed that in the last 65-66 years, no person from the Civil Judge cadre had been permitted to stake their claims as against posts which were reserved for direct recruitment from the Bar. "Recruitment from Bar shall be subject to the final outcome of the matter which has been referred".

Additionally, on the aspect of interim orders which were passed allowing members of the judicial service to stake their claims, the Court stated that such interim orders could not be granted and could not be treated as a precedent. While the appointments made so far by virtue of such interim orders were not disturbed, the Court directed that no new appointments should be made further.

On 16.09.2019, Justices Rohinton Fali Nariman and Surya Kant directed the matter of appointment of District Judges by way of direct recruitment to be urgently listed before Justice Arun Mishra.

Matter is part-heard and will continue today.