Judges can only be promoted to district judge; direct recruitment for advocates

Asmita Kuvalekar | Government Law College, Mumbai | 05^th April 2020. 

DHEERAJ MOR V HON’BLE HIGH COURT OF DELHI (CIVIL APPEAL NO 1698 OF 2020 ARISING OUT OF SLP (CIVIL) NO 14156 OF 2015) 

FACTS OF THE CASE: 

This case undertakes a nuanced interpretation of Article 233 of the Indian Constitution. Article 233 deals with the appointment of District Judges. The arguments rally for and against the inclusion of persons in judicial service, for the purposes of direct appointment under this Article. It is further claimed that if judicial officers are not taken to be eligible for direct appointment as against advocates with requisite experience, the Article must be declared ultra vires the basic Constitutional value of equality and therefore, void. 

The Supreme Court conducts a detailed study of the issue at hand, relying upon various past judgements to support its stand. 

ISSUE:

1. Whether Article 233 of the Indian Constitution can be interpreted to allow direct appointment of judges for District Judge, as is the case with advocates? 

JUDGEMENT:

The court analysed the wording of Article 233 and declared that the provision itself distinguishes between advocates and judges. Firstly, Article 233 mentions both ‘appointment’ and ‘promotion’ and then the categories of ‘not already in service of the Union or of the State’ and ‘been for not less than seven years as an advocate or a pleader’ are included. Thus, both categories can be recommended by the High Court for the purposes of appointment. Considering that the Constitution itself separates the two as different groups of people, no argument of discrimination in the provision can be accepted. 

It was also highlighted that in the past two decades, 75% of the posts in the District Judge cadre were filled by judges and the remaining 25% was taken up by advocates. On that basis, the contention of insufficient representation cannot be accepted. Furthermore, the Court clarified that if a State forms rules permitting judges to compete in the quota for advocates, no advocate would ever be selected for District Judge and the letter and spirit of Article 233 which envisages opportunity for both these groups, would be undermined. 

The petitioners’ plea that judges are best suited to adjudicate and advocates do not have the expertise to do so was rejected on grounds of Article 217 (2) that shows the Constitution’s futuristic view point for the Judiciary. The Court held that it is clear from a bare reading of this provision that the independence of the Judiciary can be nurtured as long as it keeps itself open to new perspectives. Advocates are often seen as thought generators and their appointment to judicial office can bring in a fresh voice on socially pertinent subjects, the law and the Constitution. This mixture of varied viewpoints aids the upkeep and continuity of judicial independence. 

In this way, the numerous references in this case were collectively disposed of by the Apex Court with a succinct list of its final view on the subject. It was held that Article 233 provides for appointment of both judges and advocates to the post of District Judge. However, the former can be ‘appointed’, which in this case is to be given a wider meaning, only by way of promotion or a limited competitive examination. On the other hand, advocates with requisite experience, can avail of the feature of direct recruitment as long as they are not already a part of judicial service. Furthermore, the 7 years minimum experience has to be just before the cutoff date, at the time of appointment as District Judge. Thus, members of the judicial service having 7 years or more experience of advocacy in the past cannot be held to be eligible for direct recruitment. 

For these reasons, High Court Rules debarring judges from direct recruitment and limiting their chances of being appointed as District Judge to a promotional exercise or an exam, cannot be said to be ultra vires the Constitution or violative of its basic principles under Article 14 and 16. Article 233 is not discriminatory in nature either as hereinabove explained and is therefore legally tenable. 

In light of the present judgement, the Court effectively overruled the decision given in Vijay Kumar Mishra and Anr v High Court of Judicature at Patna and Ors¹. It was explained that this decision erroneously allowed judicial officers to compete with advocates for direct recruitment and that is not a correct view of the law.

1. (2016) 9 SCC 313