The Supreme Court has observed that serving Judicial Officers cannot invoke Explanation (a) of Article 217 of the Constitution of India to club with their judicial service, the experience that they had at the Bar before joining judicial service, to claim eligibility for considering them for elevation as High Court judges.
The bench comprising the Chief Justice SA Bobde, Justices AS Bopanna V. Ramasubramanian observed that such a benefit of clubbing can be allowed only to a person who held a judicial office and later became an advocate.
These observations were made in the judgment dismissing the writ petition filed by eight judicial officers who alleged that the Madras High Court collegium ignored their names and instead recommended their "juniors" for elevation as judges of the High Court(R Poornima and others vs Union of India and others).
Article 217 (2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and —
(a) has for at least ten years held a judicial office in the territory of India; or
(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession.
Explanation (a) to this provision states that in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law.
Explanation (aa) provides that in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person [has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law] after he became an advocate.
The contention raised by the petitioners was that these provisions are to be interpreted in such a way as to club with their judicial service, the experience that they had at the Bar before joining judicial service. According to them, to interpret Explanation (a) in such a manner that only a person who resigned from Judicial service and became an Advocate will be eligible to club both the periods, will result in unfair and hostile discrimination of Judicial Officers, offending Article 14 and hence such an interpretation has to be avoided.
Such other period should have followed and not preceded the judicial service
The bench, referring to these provisions observed that though according to Explanation (a), the period of service rendered by a person in a judicial office has to be computed by taking into account the period during which he has been an advocate of a high court, such other period should have followed and not preceded the judicial service. The court said:
A person may acquire the eligibility as indicated in Article 217(2) (i) either exclusively from the Bar [as provided in clause (b)] (ii) or exclusively from the judicial service [as provided in clause (a)] (iii) or from a cocktail of both [as provided in Explanation (a) and (aa)].
Referring to dictionary meanings, the bench further said:
Explanation (a) confers the benefit of clubbing to a limited extent, to a person who has held a Judicial Office. To be eligible for the limited benefit so conferred, a person should have been an Advocate "after he has held any judicial office". There is no confusion either in the language of Article 217(2) or in our mind.
Hopping on and hopping off from one queue to the other, is not permissible.
The court added that Article 217(2) merely prescribes the eligibility criteria and the method of computation of the same. If a person is found to have satisfied the eligibility criteria, then he must take his place in one of the queues.
"There are 2 separate queues, one from judicial service and another from the Bar. One cannot stand in one queue by virtue of his status on the date of consideration of his name for elevation and at the same time keep a towel in the other queue, so that he can claim to be within the zone of consideration from either of the two or from a combination of both.. The queue to which a person is assigned, depends upon his status on the date of consideration. If a person is an advocate on the date of consideration, he can take his place only in the queue meant for members of the Bar. Similarly, if a person is a judicial officer on the date of consideration, he shall take his chance only in the queue meant for service candidates.. Hopping on and hopping off from one queue to the other, is not permissible. Today, if any of the petitioners cease to be Judicial Officers and become Advocates, they may be eligible to be considered against the quota intended for the Bar. But while continuing as Judicial Officers, they cannot seek to invoke Explanation (a) as it applies only to those who have become advocates after having held a judicial office.
With regard to the submission that the petitioners do not have any objection to the benefit of clubbing being granted even to the contesting respondents, the bench said that it is an argument of convenience. It said:
"If the argument of the petitioners is accepted and the contesting respondents are also granted the benefit of clubbing, they will be far seniors to the petitioners in terms of the total number of years of service both at the bar and in service. In such an event, the petitioners will not come anywhere near the zone of consideration (within the first 9 or 15). In every State, hundreds of judicial officers will satisfy the qualifying criteria, if the argument of the petitioners is accepted. Take for instance a case where a person is appointed as a District Judge after 10 years of practice at the Bar. If the contention of the petitioners is accepted, even such a person will be eligible from day one of his appointment as District Judge. Since all such persons cannot be considered for the limited number of vacancies, a seniority list is maintained and a particular number of officers are taken in the zone of consideration, depending upon the number of vacancies sought to be filled up under the quota. The cache in the argument of the petitioners is that for the purpose of seniority, they do not want any two services to be clubbed, but for the purpose of eligibility, they want even the practice at the Bar to be clubbed. This is nothing but a self-serving argument."
The bench also rejected the argument that it will be discriminatory to allow the benefit of clubbing only to a person who held a judicial office and later became an advocate.
"In fact, Article 217(2) does not guarantee any one with the right to be appointed as a judge of the High Court. In a way, a person holding a judicial office is better placed, as he is assured of a career progression (though in a limited sense) after being placed in something like a conveyor belt. There is no such assurance for an advocate. Therefore, the argument based upon Article 14 does not impress us."
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