Supreme Court of India
Rejanish K.V vs K. Deepa on 9 October, 2025
Author: B.R. Gavai
Bench: B.R. Gavai
2025 INSC 1208 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL/INHERENT JURISDICTION
CIVIL APPEAL NO. 3947 OF 2020
REJANISH K.V. …APPELLANT
VERSUS
K. DEEPA AND OTHERS …RESPONDENTS
WITH
WRIT PETITION (C) NO. 759 OF 2017
WRIT PETITION (C) NO. 1278 OF 2019
REVIEW PETITION (C) NO. 381 OF 2021
IN
WRIT PETITION (C) NO. 396 OF 2018
REVIEW PETITION (C) NO. 385 OF 2021
IN
CIVIL APPEAL NO. 1700 OF 2020
REVIEW PETITION (C) NO. 1027 OF 2021
IN
WRIT PETITION (C) NO. 405 OF 2016
REVIEW PETITION (C) NO. 379 OF 2021
IN
WRIT PETITION (C) NO. 578 OF 2018
Signature Not Verified
Digitally signed by
NARENDRA PRASAD
MISCELLANEOUS APPLICATION NO. 179 OF 2021
Date: 2025.10.09
12:05:26 IST
Reason:
IN
WRIT PETITION (C) NO. 405 OF 2016
1
REVIEW PETITION (C) NO. 669 OF 2021
IN
WRIT PETITION (C) NO. 999 OF 2019
REVIEW PETITION (C) NO. 380 OF 2021
IN
WRIT PETITION (C) NO. 222 OF 2017
MISCELLANEOUS APPLICATION NO. 1050 OF 2021
IN
CIVIL APPEAL NO.1698 OF 2020
REVIEW PETITION (C) NO. 781 OF 2021
IN
WRIT PETITION (C) NO. 316 OF 2017
REVIEW PETITION (C) NO. 774 OF 2021
IN
WRIT PETITION (C) NO. 744 OF 2019
REVIEW PETITION (C) NO. 780 OF 2021
IN
WRIT PETITION (C) NO. 602 OF 2016
REVIEW PETITION (C) NO. 853 OF 2021
IN
WRIT PETITION (C) NO. 1080 OF 2019
REVIEW PETITION (C) NO. 621 OF 2021
IN
CIVIL APPEAL NO. 1698 OF 2020
REVIEW PETITION (C) NO. 868 OF 2021
IN
WRIT PETITION (C) NO. 414 OF 2016
REVIEW PETITION (C) NO. 867 OF 2021
IN
WRIT PETITION (C) NO. 405 OF 2016
2
REVIEW PETITION (C) NO. 782 OF 2021
IN
WRIT PETITION (C) NO. 639 OF 2018
WRIT PETITION (C) NO. 857 OF 2021
REVIEW PETITION (C) NO. 989 OF 2021
IN
TRANSFER PETITION (C) NO. 272 OF 2018
REVIEW PETITION (C) NO. 996 OF 2021
IN
CIVIL APPEAL NO. 1703 OF 2020
WRIT PETITION (C) NO. 864 OF 2021
REVIEW PETITION (C) NO. 835 OF 2021
IN
CIVIL APPEAL NO. 1704 OF 2020
REVIEW PETITION (C) NO. 836 OF 2021
IN
CIVIL APPEAL NO. 1706 OF 2020
REVIEW PETITION (C) NO. OF 2025
DIARY NO. 18470 OF 2021
IN
WRIT PETITION (C) NO. 608 OF 2018
REVIEW PETITION (C) NO. 1354 OF 2021
IN
CIVIL APPEAL NO. 1698 OF 2020
REVIEW PETITION (C) NO. 1042 OF 2022
IN
WRIT PETITION (C) NO. 999 OF 2019
CIVIL APPEAL NO. 11390 OF 2025
WRIT PETITION (C) NO. 827 OF 2025
3
INDEX
A. INTRODUCTION ....................................................................... 5
B. SUBMISSIONS .......................................................................... 6
C. ISSUE FOR CONSIDERATION.............................................. 15
D. PROVISION OF LAW AND PRECEDENTS.............................. 16
i. Text of Article 233 of the Constitution............................... 16
ii. Case Laws .......................................................................... 20
a. Rameshwar Dayal v. The State of Punjab and Others ..... 20
b. Chandra Mohan v. State of Uttar Pradesh and Others .... 28
c. State of Assam and Another v. Kuseswar Saikia and Others
……………………………………………………………………………..37
d. A. Panduranga Rao v. State of Andhra Pradesh and Others
……………………………………………………………………………..41
e. Satya Narain Singh v. High Court of Judicature at
Allahabad and Others ........................................................... 45
f. Sushma Suri v. Govt. of National Capital Territory of Delhi
and Another .......................................................................... 54
g. Deepak Aggarwal v. Keshav Kaushik and Others ........... 59
h. Vijay Kumar Mishra and Another v. High Court of
Judicature at Patna .............................................................. 62
i. Dheeraj Mor v. High Court of Delhi.................................. 68
j. All India Judges Association and Others v. Union of India
and Others ............................................................................ 80
E. CONSIDERATION ................................................................... 85
i. Textual and Contextual Interpretation ............................... 85
ii. Scheme of Article 233 of the Constitution ......................... 87
iii. Recommendations of the Shetty Commission .................... 92
iv. Experience of a Judicial Officer .......................................... 96
v. Interpretation of a Constitutional Provision cannot be
pedantic ................................................................................. 106
vi. Eligibility of a Judicial Officer for Direct Recruitment...... 107
vii. Break in practice of a prospective candidate .................... 111
viii. Quota for Advocates under Article 233(2) ...................... 112
ix. Doctrine of stare decisis .................................................. 112
F. CONCLUSION AND DIRECTIONS .......................................... 116
4
JUDGMENT
B.R. GAVAI, CJI
A. INTRODUCTION
1. A three-Judge Bench of this Court in this batch of
matters, vide order dated 12th August 2025, had referred the
following substantial questions of law for consideration of a
Constitution Bench:
(i) Whether a judicial officer who has already
completed seven years in Bar being recruited for
subordinate judicial services would be entitled
for appointment as Additional District Judge
against the Bar vacancy?
(ii) Whether the eligibility for appointment as a
District Judge is to be seen only at the time of
appointment or at the time of application or
both?
2. When this batch of matters was listed for directions on
12th September 2025, the following additional questions were
also framed by the Constitution Bench:
(iii) Whether there is any eligibility prescribed for a
person already in the judicial service of the
Union or State under Article 233(2) of the
5
Constitution of India for being appointed as
District Judge?
(iv) Whether a person who has been Civil Judge for
a period of seven years or has been an Advocate
and Civil Judge for a combined period of seven
years or more than seven years would be eligible
for appointment as District Judge under Article
233 of the Constitution of India?
3. For ease of convenience, the parties that support the
proposition and contend that the questions framed be
answered in favour of in-service candidates and they be
permitted to participate in direct recruitment for the post of
district judges will be referred to as the Petitioners and those
opposing the proposition and contending that the direct
recruitment should be only from the category of advocates
with seven years’ practice will be referred to as the
Respondents.
B. SUBMISSIONS
4. We have extensively heard Mr. Jayant Bhushan,
Mr. Arvind P. Datar, Mr. P.S. Patwalia, Mr. V. Giri, Ms. Vibha
Datta Makhija, Mr. Jaideep Gupta, Dr. Manish Singhvi, Mr.
Dama Seshadri Naidu, Mr. George Poonthottam, Mr. Gopal
6
Sankaranarayanan, Dr. Menaka Guruswamy, Mr. Rajive
Bhalla, Mr. Anil Kaushik, Mr. Amit Anand Tewari, Mr. B.H.
Marlapalle, Mr. Narendra Hooda and Mr. Anand Sanjay M.
Nuli learned Senior Counsel appearing on behalf of the
Petitioners.
5. We have also extensively heard Mr. C.U. Singh, Mr.
Nidhesh Gupta, Mr. Vijay Hansaria, Mr. Ravindra Shrivastava,
Mr. Rajiv Shakdher learned Senior Counsel along with
Mr. Amit Gupta, Mr. Kanhaiya Singhal, Mr. Rashid N. Azam,
Mr. Sandeep Sudhakar Deshmukh, Ms. Sindoora VNL,
Mr. Yashvardhan, Ms. Kavya Jhawar and Ms. Nandini Rai
learned counsel for the Respondents and Mr. Siddharth Gupta
and Mr. Satyam Chand Soriya for the intervenors.
6. We have also perused the material painstakingly put
together by Mr. Ajay Kumar Singh and Mr. John Mathew who
assisted the Court as Nodal Counsel for the Parties.
7. The gist of the arguments advanced by the learned
Senior Counsel appearing for the Petitioners is that:
7
i. The judgment of this Court in Dheeraj Mor v. High
Court of Delhi1 misreads Article 233(2) of the
Constitution.
ii. The construction given by Dheeraj Mor (supra) to
the effect that a person has to be presently an
advocate or a pleader makes the words “a person
not already in the service of Union or State” totally
superfluous and redundant which cannot be
permitted.2
iii. A plain reading of Article 233(2) of the Constitution
indicates that there are two sources/streams i.e.,
either a person has to be in service of the Union or
State (which has been held to be judicial service3)
or he has to be an advocate or pleader for seven
years. Once the person is already in judicial service,
no further eligibility is prescribed for being
appointed as a district judge as held by this Court
1 (2020) 7 SCC 401
2 Union of India and Another v. Hansoli Devi and Others (2002) 7 SCC 273.
3 Chandra Mohan v. State of Uttar Pradesh and Others 1966 SCC OnLine SC 35.
8
in the case of Rameshwar Dayal v. The State of
Punjab and Others4.
iv. The interpretation excluding Civil Judges from
being eligible to be appointed directly as district
judges is unreasonable and against the interest of
administration of justice. A person in judicial
service would certainly be more experienced and
more suitable for appointment. Any exclusion by
the relevant rules would be violative of Articles 14
and 16 of the Constitution.
v. There is no requirement of any period of time or
experience that a Civil Judge must possess to be
eligible for direct recruitment as a district judge.
Article 233 does not lay down any such
requirement. In any case, if this Court deems it fit
that there is such a requirement then seven years’
experience as a Civil Judge or combined experience
of seven years as an advocate and a Civil Judge
would be sufficient. Reliance is also made in this
4 1960 SCC OnLine SC 123
9
respect on Explanation (aa) of Article 217(2) of the
Constitution.
vi. The use of the words “has been” in Article 233(2) of
the Constitution means a state of affairs which had
existed in the past and need not to be continuing in
the present. The words “has been” without being
followed by participle of the verb is the present
perfect tense of “to be” and cannot be the present
perfect continuous tense.5 Further, a reading of the
Hindi version of the Constitution would show that
the expression used is “pleader raha hain” and not
“pleader hain”.
vii. All the petitioners in the case of Deepak Aggarwal
v. Keshav Kaushik and Others6, had claimed
themselves to be advocates on the date of their
application for the post of district judge by way of
direct recruitment and thus this Court in the said
case was not dealing with the issue as to whether
5 Mubarak Mazdoor v. Mr. K.K. Banerji 1957 SCC Online All 196, Harbhajan Singh
v. Press Council of India and Others (2002) 3 SCC 722 and Surendra Singh s/o
Ram Shanker Singh and Another v. State of U.P. through Secretary Home and
Another 2012 SCC Online All 37.
6 (2013) 5 SCC 277
10
being an advocate on the date of application and
appointment is a necessary criterion or not. In spite
of this, this Court in Deepak Aggarwal (supra)
held that one of the essential requirements of Article
233(2) is that the candidate must be continuing as
an advocate on the date of application. This finding,
therefore, is in the nature of an obiter dicta and not
ratio decidendi.
8. The gist of the arguments advanced by the learned
Senior Counsel/counsel appearing for the Respondents is
that:
i. For the last 60 to 65 years, the interpretation of
Article 233 of the Constitution has been uniform
and has stood the test of time. What was held by
the two Constitution Bench judgments of this Court
in the cases of Rameshwar Dayal (supra) and
Chandra Mohan (supra) has been further
interpreted by several three-judge bench judgments
of this Court. It is given that there are two
sources/streams of recruitment to the post of
district judges and that direct recruitment is only
11
from the stream of practicing advocates. Reliance in
this respect has been placed on the judgments of
this Court in the cases of Mahesh Chandra Gupta
v. Union of India and Others7 and Deepak
Aggarwal (supra).
ii. Stare decisis et non quieta movere or to “stand by
decisions and not to disturb what is settled”, is a
doctrine which clearly applies to the present
reference. The questions raised by serving judicial
officers in the present matter are covered by over six
decades of stare decisis. The directions issued by
this Court in paragraphs 27 and 28 of All India
Judges’ Association and Others v. Union of
India and Others8, directing a quota of 75:25 for
recruitment to the posts of district judges in all
States, with 25% being exclusively reserved for
eligible advocates, was entirely in tune with the
decisions of this Court in 1960, 1965, 1985 and
1998.
7 (2009) 8 SCC 273
8 (2002) 4 SCC 247
12
iii. The term “service” has been held to mean judicial
service in the case of Chandra Mohan (supra). The
wording of Article 233(2) is unequivocal in
distinguishing those who are already in service and
placing them in a separate category. It is, therefore,
evident that the said provision applies only to those
who are not in judicial service either of the Union or
of the State. Nowhere does it provide an eligibility
condition for the appointment of in-service
candidates merely because they had completed 7
years of practice as an advocate prior to their
appointment.
iv. Once an individual joins the stream of service,
he/she ceases to be an advocate. A person in
judicial service cannot simultaneously also be a
practicing advocate and is, therefore, not eligible for
being appointed as against the quota reserved for
advocates. The requirement of having seven years
of practice refers to a continuous state of affairs.
v. Clause (2) of Article 233 of the Constitution does not
specifically provide for direct recruitment for those
13
in service. If direct recruitment is to be
contemplated, this Court would be reading into the
clause what is not mentioned therein. It would
result in an incongruous situation, wherein, while
qualifications for one source of direct recruitment
(i.e., practicing advocates) are prescribed, there is
no qualification for those who are in service. If direct
recruitment for in-service candidates is read into
clause (2) of Article 233, it would mean that any
Civil Judge (even with one day’s experience) can
seek appointment as district judge by way of direct
recruitment.
vi. In the case of Rameshwar Dayal (supra) Harbans
Singh and P.R. Sawhney (Respondents therein) did
not cease to be advocates at any time after 15th
August 1947 and continued to be advocates till they
were appointed as judges. Further, they had a
standing of seven years.
vii. With respect to the two sources of recruitment,
those in service are appointed in “consultation” with
the High Court and those from the bar are
14
appointed on the “recommendation” of the High
Court. The observations relied on by the Petitioners
in the lower part of paragraph 89 of Chandra
Mohan (supra) are only qua the question whether
the Governor can appoint from services other than
judicial services. It is in that context that two
sources of recruitment being “indicated” in clause
(2) is mentioned. This is so because when clause (2)
speaks of those who are not in service, there is
obviously a second source, i.e., of those who are in
service.
C. ISSUE FOR CONSIDERATION
9. The present batch of matters arises for consideration
in view of the interpretation given to Article 233 of the
Constitution of India by a three-Judge Bench of this Court in
the case of Dheeraj Mor (supra). It will be pertinent to
reproduce the finding of the said three-Judge Bench, in
paragraph 45, which reads thus:
“45. In view of the aforesaid discussion, we are of the
opinion that for direct recruitment as District Judge
as against the quota fixed for the
advocates/pleaders, incumbent has to be practising
advocate and must be in practice as on the cut-off
date and at the time of appointment he must not be
15
in judicial service or other services of the Union or
State. For constituting experience of 7 years of
practice as advocate, experience obtained in judicial
service cannot be equated/combined and
advocate/pleader should be in practice in the
immediate past for 7 years and must be in practice
while applying on the cut-off date fixed under the
rules and should be in practice as an advocate on the
date of appointment. The purpose is recruitment
from Bar of a practising advocate having minimum 7
years’ experience.”
10. As such, what has been held by this Court, reads thus:
“Under Article 233 (2), an advocate…
(i) Should be in practice in the immediate
past for seven years;
(ii) Must be in practice while applying on the
cut-off date; and
(iii) Should be in practice as an advocate on
the date of appointment.”
11. We are, therefore, called upon to consider the
correctness of the said finding.
D. PROVISION OF LAW AND PRECEDENTS
i. Text of Article 233 of the Constitution
12. Article 233 of the Constitution of India reads thus:
“233. Appointment of district judges.—
(1) Appointments of persons to be, and the posting
and promotion of, district judges in any State shall
be made by the Governor of the State in consultation
with the High Court exercising jurisdiction in relation
to such State.
16
(2) A person not already in the service of the Union or
of the State shall only be eligible to be appointed a
district judge if he has been for not less than seven
years an advocate or a pleader and is recommended
by the High Court for appointment.”
13. Applying the first principle of interpretation i.e., the
rule of literal interpretation, we propose to analyse the
provisions contained in Article 233 of the Constitution.
14. Clause (1) of Article 233 of the Constitution deals with
the appointments of persons to be, and the posting and
promotion of, district judges in any State. It can thus be seen
that Article 233(1) of the Constitution is a provision providing
for appointments of persons as district judges in a State so
also for posting and promotions thereof. It further provides
that such appointments shall be made by the Governor of the
State concerned in consultation with the High Court
exercising jurisdiction in relation to such State.
15. Article 233(2) of the Constitution deals with the
eligibility of the persons for appointment to the post of district
judge. A plain reading of clause (2) of Article 233 of the
Constitution would reveal that for appointment of a person to
the post of district judge, two streams are provided:
17
(i) a person not already in the service of the Union or
of the State; and
(ii) an advocate or a pleader if he has been an advocate
or a pleader for not less than seven years.
16. It can thus be seen that the words “a person not
already in the service of the Union or of the State” is the first
part of Article 233(2) of the Constitution. The second part is
“shall only be eligible to be appointed if he has been for not
less than seven years as an advocate or a pleader”.
17. The first clause of Article 233 speaks of appointment,
posting and promotion of district judges in a State which shall
be made by the Government of the State in consultation with
its High Court. Clause (2) of Article 233 does not restrict
appointment of persons employed in the Union or the State to
the post of district judges but enables, in addition advocates
or pleaders who have seven years’ practice, to be appointed as
district judges. The appointment or promotion and the
consequential posting has to be made under Clause (1) of
Article 233, while Clause (2) provides for two sources of
appointment. The plain meaning coming out of the words
employed does not provide any restriction to judicial officers
18
from direct recruitment. On the other hand, it enables a
judicial officer to be appointed as a district judge by direct
recruitment even without the prescription of a period of
practice.
18. As already discussed hereinabove, this Court in the
case of Dheeraj Mor (supra) has held that clause (2) of Article
233 of the Constitution does not provide for a qualification of
a person who is already in service of the Union or of the State.
It provides qualifications only insofar as an advocate or a
pleader is concerned. This Court, in the case of Dheeraj Mor
(supra), held that for a person to be eligible to be appointed as
district judge it is required that he has been for not less than
seven years an advocate or a pleader. The requirement of
recommendation of the High Court is common to both streams
i.e., in-service candidates and an advocate or a pleader. With
this analysis, we propose to deal with the judgments of this
Court which are concerned with the issues raised in the
present reference.
19
ii. Case Laws
a. Rameshwar Dayal v. The State of Punjab and
Others
19. The issue with regard to interpretation of Article 233 of
the Constitution came up for consideration before a
Constitution Bench of this Court in the case of Rameshwar
Dayal (supra).
20. In the said case, a petition came to be filed before the
High Court of Punjab contending that five persons
(Respondents No. 2 to 6 therein) were not qualified to be
appointed as district judges under Article 233 of the
Constitution at the time they were appointed by the State
Government. The writ petitioner before the High Court had
inter-alia sought for a writ of quo-warranto thereby seeking to
oust them from their office and for restraining them from
exercising the powers, duties and functions of the posts they
were holding. The writ petition was summarily dismissed by
the High Court on 21st September 1959. An application for a
certificate of fitness was rejected by the High Court. The writ
petitioner, therefore, prayed for a special leave from this Court
which was granted on 19th August 1960.
20
21. The appointment of the three respondents was
challenged on the ground that they did not have the requisite
experience of seven years’ practice in the High Court of Punjab
and that their experience before the Lahore High Court, prior
to partition, could not be taken into consideration for counting
the total experience. Insofar as the other two respondents are
concerned, it was contended that, one of them was working as
a Chairman, Jullundur Improvement Trust and the other one
was working as a Deputy Custodian, Evacuee Property on the
date of their appointment as District & Sessions Judges and
as such they were not qualified.
22. This Court recorded that the contentions raised on
behalf of the appellant therein ranged over a wide field,
however, the point for consideration is that whether clause (2)
of Article 233 of the Constitution provides that a person not
already in the service of the Union or of the State shall only be
eligible to be appointed as a district judge if he (i) has been for
not less than seven years an advocate or a pleader and
(ii) is recommended by the High Court for appointment.
23. This Court further recorded the following arguments
which were raised on behalf of the appellant therein:
21
(i) That the expression “advocate or pleader” is an
expression of legal import and must be given its
generally accepted meaning at the time the
Constitution was adopted, and that the said
expression means an advocate or pleader entitled to
appear and plead for another in a Court in India but
does not include an advocate or pleader of a foreign
Court;
(ii) That the use of the present prefect tense “has been” in
clause (2) of Article 233 of the Constitution require
that the person eligible for appointment must not only
have been an advocate or pleader before but must be
an advocate or pleader at the time he is appointed to
the office of district judge;
(iii) That the period of seven years referred to in clause (2)
of Article 233 must be counted as the standing of the
advocate or pleader with reference to his right of
practice in a court in the territory of India i.e., any
right of practice in a court which was in India before
the partition of the country in 1947 but which is not
in India since partition, cannot be taken into
22
consideration for the purpose of counting the period of
seven years.
24. Answering the questions that arose for consideration
before it, the Constitution Bench observed thus:
“12. ……..Article 233 is a self contained provision
regarding the appointment of District Judges. As to a
person who is already in the service of the Union or
of the State, no special qualifications are laid down
and under clause (1) the Governor can appoint such
a person as a district judge in consultation with the
relevant High Court. As to a person not already in
service, a qualification is laid down in clause (2) and
all that is required is that he should be an advocate
or pleader of seven years' standing. ……..”
25. It can thus be seen that this Court has held that Article
233 of the Constitution is a self-contained provision regarding
the appointment of district judges. It has been held that for a
person who is already in the service of the Union or of the
State, no special qualifications are laid down and under clause
(1) of Article 233 of the Constitution, the Governor can appoint
such a person as a district judge in consultation with the
relevant High Court. It has also been held that for a person
not already in service, qualifications are laid down in clause
(2) of Article 233 of the Constitution and all that is required is
23
that he/she should be an advocate or pleader of seven years’
standing.
26. It is thus clear that the source of appointment for both
an in-service candidate and a directly recruited candidate is
provided in clause (1) of Article 233 of the Constitution. Clause
(2) of Article 233 of the Constitution deals with the two aspects
viz., (i) qualification of an advocate or a pleader and (ii)
necessity of the recommendation by the High Court.
27. Insofar as the issue with regard to counting the
experience of an advocate or a pleader in the Lahore High
Court for counting the years of service as an advocate of High
Court of Punjab is concerned, we may observe that the same
is not relevant for adjudication of the present reference
inasmuch as it is not an issue before us.
28. This Court in that respect, however, in Rameshwar
Dayal (supra) made a reference to the consequences that
would follow if the interpretation canvassed on behalf of the
appellant therein was to be accepted. The Court recorded that
if the same is accepted, then for seven years beginning from
15th August 1947, no member of the Bar of the Punjab High
Court would be eligible for appointment as a district judge.
24
29. It will be relevant to refer to the following observations
of this Court:
“13. ……..It is perhaps necessary to add that we
must not be understood to have decided that the
expression ‘has been’ must always mean what
learned counsel for the appellant says it means
according to the strict rules of grammar. It may be
seriously questioned if an organic Constitution must
be so narrowly interpreted, and the learned
Additional Solicitor-General has drawn our attention
to other Articles of the Constitution like Article 5(c)
where in the context the expression has a different
meaning. Our attention has also been drawn to the
decision of the Allahabad High Court in Mubarak
Mazdoor v. K.K. Banerji [AIR 1958 All 323] where a
different meaning was given to a similar expression
occurring in the proviso to sub-section (3) of Section
86 of the Representation of the People Act, 1951. We
consider it unnecessary to pursue this matter further
because the respondents we are now considering
continued to be advocates of the Punjab High Court
when they were appointed as district judges and they
had a standing of more than seven years when so
appointed. They were clearly eligible for appointment
under clause 2 of Article 233 of the Constitution.”
30. It can thus be seen that with respect to the submission
advanced on behalf of the learned counsel for the appellant
therein, the Constitution Bench of this Court observed that it
is necessary to add that they must not be understood to have
decided that the expression “has been” must always mean
what the learned counsel for the appellant says it to mean. The
Constitution Bench further observed that they may be
25
seriously questioned if an organic constitution must be so
narrowly interpreted. However, this Court did not find it
necessary to pursue the matter in this regard since
Respondents No. 2, 4 and 5 were considered to be continuing
as advocates of the Punjab High Court when they were
appointed as district judges and they had a standing of more
than seven years when so appointed (which was inclusive of
their practice as an advocate in the Lahore High Court).
31. This Court in Rameshwar Dayal (supra) thereafter
considered the cases of Respondents No. 3 and 6 whose names
were not on the roll of advocates at the time they were
appointed as district judges. This Court observed thus:
“14. We now turn to the other two respondents
(Harbans Singh and P.R. Sawhney) whose names
were not factually on the roll of Advocates at the time
they were appointed as district judges. What is their
position? We consider that they also fulfiled the
requirements of Article 233 of the Constitution.
Harbans Singh was in service of the State at the time
of his appointment, and Mr Viswanantha Sastri
appearing for him has submitted that clause (2) of
Article 233 did not apply. We consider that even if we
proceed on the footing that both these persons were
recruited from the Bar and their appointment has to
be tested by the requirements of clause (2), we must
hold that they fulfilled those requirements. ……….”
26
32. It is thus clear that in spite of the fact that
Respondents No. 3 and 6 were factually not on the roll of
advocates at the time of their appointment as district judges
and they were in service of the State, they were considered
eligible for appointment. This Court specifically observed that
Harbans Singh (Respondent No. 3) and P.R. Sawhney
(Respondent No. 6) were in service of the State at the time of
his appointment.
33. No doubt that the learned Senior Counsel/counsel
appearing for the Respondents before us in the present batch
of matters are right in contending that the Constitution Bench
in Rameshwar Dayal (supra) while interpreting Section
8(2)(a) of the Bar Councils Act, 1926 and Clause 6 of the High
Courts (Punjab) Order, 1947 held that the concerned
Respondents therein did not cease to be advocates at any time
or stage after August 15, 1947 and they continued to be
advocates of the Punjab High Court till they were appointed as
district judges. However, the position is clear that both
Respondents No. 3 and 6 therein were in service of the State
at the time of their appointment. It is also not in dispute that
27
on 6th May 1949, Respondent No. 6 therein had got his licence
to practise as an advocate suspended.
b. Chandra Mohan v. State of Uttar Pradesh and
Others
34. The next judgment of this Court which requires our
consideration is that of Chandra Mohan (supra). Before we
proceed to consider the observations of the Constitution
Bench in the said case, a brief narration of the facts would be
necessary.
35. In the said case, in the year 1961-62, the Registrar of
the Allahabad High Court called for applications for
recruitment to ten vacancies in the Uttar Pradesh Higher
Judicial Service from Barristers, Advocates, Vakils and
Pleaders of more than seven years’ standing and from judicial
officers.
36. It will be relevant to refer to Rule 14 of the U.P. Higher
Judicial Service Rules which reads thus:
“Rule 14. Direct Recruitment.—
(1) Applications for direct recruitment to the service
shall be called for by the High Court and shall be
made in the prescribed form which may be obtained
from the Registrar of the Court.
(2) The applications by barristers, advocates, vakils
or pleaders, should be submitted through the District
28
Judge concerned, and must be accompanied by
certificates of age, character, nationality and
domicile, standing as a legal practitioner, and such
other documents as may be prescribed in this behalf
by the Court. Applications from Judicial Officers
should be submitted in accordance with the rules
referred to in clause 2(b) of rule 5 of these Rules. The
District Judge or other officer through whom the
application is submitted shall send to the Court,
along with the application, his own estimate of the
applicant’s character and fitness for appointment to
the service.”
37. The Selection Committee constituted under the U.P.
Higher Judicial Service Rules, in accordance with the
provisions of the said Rules, selected six candidates from the
said applicants as suitable for appointment to the said service.
Respondents No. 2, 3 and 4 therein were advocates and
respondents No. 5, 6 and 7 therein were “judicial officers”.
Their appointments were challenged before the High Court on
the ground that the said candidates were not the members of
the judicial service. There was difference of opinion between
the judges of the Division Bench of the High Court. As such,
the matter came to be referred to a third Judge. The third
Judge agreed with the view that the recruitment from both the
sources was good. As such, the writ petitions were dismissed.
Pursuant to the certificate given by the High Court under
29
Articles 132(1) and 133(1)(c) of the Constitution, the appeal
came to be filed before this Court.
38. It is pertinent to note that the Constitution Bench of
this Court in Chandra Mohan (supra) observed that the
expression “judicial officers” is a euphemism for the members
of the Executive department who discharge some revenue and
magisterial duties.
39. Though several issues were raised for consideration
before the Constitution Bench in the case of Chandra Mohan
(supra), it would suffice to refer to the following contentions:
“ …(3) The Governor has no power to appoint district
judges from judicial officers as they are not members
of the judicial service. (4) The exclusion of the
members of the judicial service in the matter of direct
recruitment offends Arts. 14 and 16 of the
Constitution; or, alternatively, the exclusion of the
members of the judicial service in the matter of direct
recruitment to the post of district judges while
permitting “judicial officers” to be so recruited
offends the said articles…..”
40. It will be relevant to specifically refer to the third point
which has been considered by this Court in Chandra Mohan
(supra), which reads thus:
“The third point raised is one of far-reaching
importance. Can the Governor, after the
Constitution, directly appoint persons from a service
30
other than the judicial service as district judges in
consultation with the High Court? Can he appoint
“judicial officers” as district judges? The expression
“judicial officers” is a misleading one. It is common
case that they belong to the executive branch of the
Government, though they perform certain revenue
and magisterial functions.”
41. It can thus be seen that the main issue that fell for
consideration before this Court in the said case was as to
whether the judicial officers belonging to the executive branch
of the Government could be appointed as district judges?
42. It will also be relevant to the following observations of
this Court in the case of Chandra Mohan (supra):
“Before construing the said provisions, it should be
remembered that the fundamental rule of
interpretation is the same whether one construes the
provisions of the Constitution or an Act of
Parliament, namely, that the court will have to find
out the expressed intention from the words of the
Constitution or the Act, as the case may be. But, “if,
however, two constructions are possible then the
Court must adopt that which will ensure smooth and
harmonious working of the Constitution and eschew
the other which will lead to absurdity or give rise to
practical inconvenience or make well established
provisions of existing law nugatory.”
43. It can thus be seen that the Constitution Bench held
that though the fundamental rule of interpretation is the same
whether one construes the provisions of the Constitution or an
31
Act of Parliament, namely, that the Court will have to find out
the expressed intention from the words of the Constitution or
the Act. However, if two constructions are possible then the
Court must adopt that which will ensure smooth and
harmonious working of the Constitution and eschew the other
which will lead to absurdity or give rise to practical
inconvenience or make well established provisions of existing
law nugatory.
44. The Court in the said case thereafter examined the
entire scheme of Articles 233 to 237 of the Constitution.
45. After examining the scheme, this Court observed thus:
“The gist of the said provisions may be stated thus :
Appointments of persons to be, and the posting
and promotion of, district judges in any State
shall be made by the Governor of the State. There
are two sources of recruitment, namely, (i) service
of the Union or of the State, and (ii) members of
the Bar. The said judges from the first source are
appointed in consultation with the High Court
and those from the second source are appointed
on the recommendation of the High Court. But in
the case of appointments of persons to the judicial
service other than as district judges, they will be
made by the Governor of the State in accordance with
rules framed by him in consultation with the High
Court and the Public Service Commission. But the
High Court has control over all the district courts and
courts subordinate thereto, subject to certain
prescribed limitations.”
[Emphasis supplied]
32
46. It can thus be seen that this Court has held that the
appointments of persons to be, and the posting and promotion
of, district judges in any State shall be made by the Governor
of the State. This Court further held that there are two sources
of recruitment, namely, (i) service of the Union or of the State,
and (ii) members of the Bar. It has been held that the said
judges from the first source are appointed in consultation with
the High Court and those from the second source are
appointed on the recommendation of the High Court. This
Court further held that in the case of appointments of persons
to the judicial service other than as district judges, the same
shall be made by the Governor of the State in accordance with
rules framed by him in consultation with the High Court and
the Public Service Commission. It has been further held that
the High Court has control over all the district courts and
courts subordinate thereto, subject to certain prescribed
limitations.
47. This Court held that under Article 236(b) of the
Constitution, “judicial service” has been defined to mean a
service consisting exclusively of persons intended to fill the
33
post of district judge and other civil judicial posts inferior to
the post of district judge. This Court thereafter observed thus:
“If this definition, instead of appearing in Art. 236, is
placed as a clause before Art. 233(2), there cannot
be any dispute that “the service” in Art. 233(2)
can only mean the judicial service. The
circumstance that the definition of “judicial service”
finds a place in a subsequent Article does not
necessarily lead to a contrary conclusion. The fact
that in Art. 233(2) the expression “the service” is
used whereas in Arts. 234 and 235 the expression
“judicial service” is found is not decisive of the
question whether the expression “the service” in
Art. 233(2) must be something other than the
judicial service, for, the entire chapter is dealing
with the judicial service. The definition is
exhaustive of the service. Two expressions in the
definition bring out the idea that the judicial service
consists of hierarchy of judicial officers starting from
the lowest and ending with district judges. The
expressions “exclusively” and “intended”
emphasise the fact that the judicial service
consists only of persons intended to fill up the
posts of district judges and other civil judicial
posts and that is the exclusive service of judicial
officers. Having defined “judicial service” in
exclusive terms, having provided for appointments to
that service and having entrusted the control of the
said service to the care of the High Court, the makers
of the world (sic) Constitution not have conferred a
blanket power on the Governor to appoint any person
from any service as a district judge.”
[Emphasis supplied]
48. This Court, therefore, after examining the scheme held
that having defined “judicial service” in exclusive terms and
having provided for appointments to that service and having
34
entrusted the control of the said service to the care of the High
Court, the makers of the Constitution could not have conferred
a blanket power on the Governor to appoint any person from
any service as a district judge. Subsequently, after referring to
the observations of this Court in the case of Rameshwar
Dayal (supra), this Court in the case of Chandra Mohan
(supra) observed thus:
“This passage is nothing more than a summary of the
relevant provisions. The question whether “the
service” in Art. 233(2) is any service of the Union or
of the State did not arise for consideration in that
case nor did the Court express any opinion thereon.
We, therefore, construe the expression “the service”
in d. (2) (sic) of Art. 233 as the judicial service.”
49. It can thus be seen that the question whether “the
service” in Article 233(2) of the Constitution “is any service of
the Union or of the State” did not arise for consideration in
Rameshwar Dayal (supra). This Court, therefore, in
Chandra Mohan (supra) construed the expression “the
service” in clause (2) of Article 233 of the Constitution as the
judicial service.
50. This Court, in the result, held that the U.P. Higher
Judicial Service Rules providing for the recruitment of district
35
judges are constitutionally void and therefore the
appointments made thereunder were illegal.
51. A perusal of both these Constitution Bench judgments
would reveal that this Court does not hold that in case of direct
recruitment, it is only the advocates having practice of seven
years who could be appointed. Neither does either of the
judgment prohibit the judicial officers to be considered for
appointment by way of direct recruitment.
52. If we accept the construction as put forth by the
Respondents, then the first part of clause (2) of Article 233 of
the Constitution i.e., “a person not already in service of the
Union or of the State” will be rendered redundant and
superfluous.
53. It is, however, more than a settled position of law that
it is presumed that the legislature has inserted each and every
word with an intention to give the provision an effective
meaning.
54. If the Constituent Assembly desired that when the
recruitment is made directly, only the advocates having seven
years of practice would be considered for appointment, it
would not have put the words “a person not already in service
36
of the Union or of the State” in the first part of clause (2) of
Article 233 of the Constitution. It is, therefore, to be presumed
that the Constituent Assembly has used the said words with a
purpose.
55. As already discussed hereinabove, the source of
appointment of district judges is clause (1) of Article 233 of the
Constitution. Even if the selection of such a person is made
through promotions or through the mode of direct
recruitment, the appointment will have to be made by the
Governor of the concerned State in consultation with the High
Court. At the cost of repetition, we observe that the second
part of clause (2) of Article 233 of the Constitution only enables
and provides for qualifications for advocates or pleaders who
are desirous of competing for the post of district judge.
c. State of Assam and Another v. Kuseswar Saikia
and Others
56. Coming next to the case of State of Assam and
Another v. Kuseswar Saikia and Others9.
57. In the said case, a writ petition was filed before the
High Court of Assam by Respondents No.1 to 3 therein seeking
9 (1969) 3 SCC 505
37
the issuance of a writ of quo-warranto challenging the
appointment of one Upendra Nath Rajkhowa, who was the
District and Sessions Judge, Darrang at Tazpur. The
Respondents No. 1 to 3 therein had been convicted by
Rajkhowa in a Sessions Trial, as a result they had challenged
their conviction inter-alia on the ground that Rajkhowa was
not entitled to hold the post of District and Sessions Judge.
The High Court held that the “promotion” of Rajkhowa by the
Governor as Additional District Judge by notification LJJ
74/66/65 dated 19th June 1967 purporting to act under
Article 233 of the Constitution was void because he could only
be promoted by the High Court acting under Article 235 of the
Constitution. As a consequence, his further appointment as
District Judge by the Governor was also declared by the High
Court to be void. Aggrieved, the judgment of the High Court
was challenged before this Court.
58. While deciding the appeal, this Court, after referring to
clause (1) of Article 233 of the Constitution, observed thus:
“4. …….The language seems to have given trouble to
the High Court. The High Court holds:
“(1) ‘appointment to be’ a District Judge is
to be made by the Governor in
38
consultation with the High Court vide
Article 233; and
(2) ‘promotion’ of a District Judge and not
promotion ‘to be a District Judge’ is also to
be made by the Governor in consultation
with the High Court vide Article 233.”
The High Court gives the example of selection grade
posts in the cadre of District Judges which according
to it is a case of promotion of a District Judge.”
59. It will also be apt to refer to the following observations
of this Court in the case of Kuseswar Saikia (supra):
“6. It means that appointment as well as
promotion of persons to be District Judges is a
matter for the Governor in consultation with the
High Court and the expression “District Judge”
includes an Additional District Judge and an
Additional Sessions Judge. It must be
remembered that District Judges may be directly
appointed or may be promoted from the
subordinate ranks of the judiciary. The article is
intended to take care of both. It concerns initial
appointment and initial promotion of persons to
be either District Judges or any of the categories
included in it. Further, promotion of District
Judges is a matter of control of the High Court.
What is said of District Judges here applies equally
to additional District Judges and Additional Sessions
Judges. Therefore when the Governor appointed
Rajkhowa an Additional District Judge, it could
either be an “appointment” or a promotion under
Article 233. If it was an appointment it was
clearly a matter under Article 233. If the
notification be treated as “promotion” of
Rajkhowa from the junior service to the senior
service it was a “promotion” of a person to be a
District Judge which expression, as shown above,
includes an Additional District Judge. In our
opinion, it was the latter. Thus there is no doubt
39
that the appointment of Rajkhowa as Additional
District Judge by the Governor was a promotion and
was made under Article 233. It could not be made
under Article 235 which deals with posts subordinate
to a District Judge including an Additional District
Judge and an Additional Sessions Judge. The High
Court was in error in holding that the appointment
of Rajkhowa to the position of an Additional District
Judge was invalid because the order was made by the
Governor instead of the High Court. The appointment
or promotion was perfectly valid and according to the
Constitution.”
[Emphasis supplied]
60. It is thus clear that this Court, in unequivocal terms,
held that appointment as well as promotion of persons to be
District Judges is a matter for the Governor in consultation
with the High Court and the expression “District Judge”
includes an Additional District Judge and an Additional
Sessions Judge. This Court further observed that the District
Judges may be directly appointed or may be promoted from
the subordinate ranks of the judiciary. It has been observed
that Article 233(1) is intended to take care of both i.e., it
concerns with initial appointment as well as promotion of
persons to be either District Judges or any of the categories
included in it. This Court further held that the promotion of
District Judges is a matter under the control of the High Court.
It has been held that when the Governor appointed Rajkhowa
40
an Additional District Judge, it could either be an
“appointment” or a “promotion” under Article 233 of the
Constitution. It has been held that if it was an appointment, it
was clearly a matter under Article 233 of the Constitution. This
Court held that there is no doubt that the appointment of
Rajkhowa as Additional District Judge by the Governor was a
promotion and the same was made under Article 233 of the
Constitution. This Court, therefore, held that the promotion
could not be made under Article 235 which deals with posts
subordinate to a District Judge including an Additional
District Judge and an Additional Sessions Judge and that the
High Court was in error in holding that the appointment of
Rajkhowa to the position of an Additional District Judge was
invalid because the order was made by the Governor instead
of the High Court.
d. A. Panduranga Rao v. State of Andhra Pradesh
and Others
61. Next is the case of A. Panduranga Rao v. State of
Andhra Pradesh and Others10, where the Government of
Andhra Pradesh was requested by the High Court to take
10 (1975) 4 SCC 709
41
necessary steps for filling up six vacancies by notifying six
posts of District & Sessions Judge, Grade-II for direct
recruitment. The State Government informed the High Court
vide D.O letter dated 14th September 1972 that six vacancies
were being notified for direct recruitment and they were
actually notified in the Gazette on the very same date. The
advertisement was therefore published on 1st August 1972.
Totally 381 applications were received. Out of 381, 26
applications were found to be not in order and were therefore
rejected. The remaining 355 candidates were called by the
Selection Committee of the High Court for interview. The
appellant therein, A. Panduranga Rao, was one of the
candidates interviewed by the Selection Committee. After
completion of selection procedure, the High Court made its
recommendation in order of merit and Panduranga Rao was
5th out of the 6 names recommended. It, however, appears that
the recommendations were leaked and the Bar Association
City Civil Court, Hyderabad and the High Court Bar
Association passed certain resolutions/sent certain
memoranda to the Government and made some adverse
comments against some of the persons recommended by the
42
High Court. The State Government addressed a D.O. letter
dated 24th July 1973 to the High Court expressing concern
over the leakage of secret information but at the same time
invited comments from the High Court. It appears that there
was an exchange of communication and thereafter, the
Government appointed two persons from the list of the
candidates who were interviewed by the Selection Committee
excluding the appellant therein. Several writ petitions were
filed before the High Court challenging the said appointments.
A writ petition was also filed by the appellant challenging the
said appointments so also his non-selection. The writ petition
filed by the appellant before the High Court was dismissed. In
appeal, this Court, after considering the provisions of Article
233 of the Constitution and the judgment in the case of
Chandra Mohan (supra), observed thus:
“8. A candidate for direct recruitment from the Bar
does not become eligible for appointment without the
recommendation of the High Court. He becomes
eligible only on such recommendation under clause
(2) of Article 233. The High Court in the judgment
under appeal felt some difficulty in appreciating the
meaning of the word “recommended”. But the literal
meaning given in the Concise Oxford Dictionary is
quite simple and apposite. It means “suggest as fit for
employment”. In case of appointment from the Bar it
43
is not open to the Government to choose a candidate
for appointment until and unless his name is
recommended by the High Court.”
62. Finally, this Court allowed the appeal and set aside the
judgment of the High Court. It can thus clearly be seen that
the question before the Court was as to whether the State
Government was empowered to make appointment of a
candidate not recommended by the High Court. This Court, in
unequivocal terms, held that a candidate becomes eligible for
appointment only on such recommendation under clause (2)
of Article 233 of the Constitution. The writ petition filed by the
appellant before the High Court succeeded only to the extent
that the appointment of the candidates whose names were
recommended by the High Court was quashed.
63. Relying on the said observations, it is sought to be
submitted by the learned Senior Counsel/counsel appearing
on behalf of the Respondents that direct recruitment is
reserved for the members of the Bar.
64. It is, however, to be noted that in the said case of A.
Panduranga Rao (supra), the question as to whether a
candidate already in the judicial service of the Union or the
44
State was eligible for being considered for appointment as a
district judge by way of direct recruitment did not fall for
consideration.
e. Satya Narain Singh v. High Court of Judicature
at Allahabad and Others
65. A heavy reliance is also placed by the Respondents on
the judgment of this Court in the case of Satya Narain Singh
v. High Court of Judicature at Allahabad and Others11
rendered by a Bench of three learned Judges.
66. In the said case, the appellants therein, who were
members of the Uttar Pradesh Judicial Service, in response to
an advertisement by the High Court of Allahabad, applied to
be appointed by direct recruitment to the Uttar Pradesh Higher
Judicial Service. They claimed that each of them had
completed seven years of practice at the Bar even before their
appointment to the Uttar Pradesh Judicial Service and as
such, eligible to be appointed by direct recruitment to the
Higher Judicial Service. The writ petitions filed by them before
the High Court were dismissed. The Civil Appeal filed
thereagainst and some of the writ petitions filed before this
11 (1985) 1 SCC 225
45
Court were dismissed on 11th October 1984. However,
thereafter, three writ petitions were heard by a three-Judge
Bench which came to be dismissed by this Court on 27th
November 1984.
67. It will be relevant to refer to the arguments advanced
by both the sides, which read thus:
“2. The submission of Shri Lal Narain Sinha and Shri
K.K. Venugopal was that there was no constitutional
inhibition against members of any Subordinate
Judicial Service seeking to be appointed as District
Judges by direct recruitment provided they had
completed 7 years' practice at the bar. The
submission of the learned counsel was that members
of the Subordinate Judiciary, who had put in 7 years'
practice at the bar before joining the Subordinate
Judicial Service and who had gained experience as
Judicial Officers by joining the Subordinate Judicial
Service ought to be considered better fitted for
appointment as District Judges because of the
additional experience gained by them rather than be
penalised for that reason. The learned counsel
submitted that a construction of Article 233 of the
Constitution which would render a member of the
Subordinate Judicial Service ineligible for
appointment to the Higher Judicial Service because
of the additional experience gained by him as a
Judicial Officer would be both unjust and
paradoxical. It was also suggested that it would be
extremely anomalous if a member of the Uttar
Pradesh Judicial Service who on the present
construction of Article 233 is ineligible for
appointment as a District Judge by direct
recruitment, is nevertheless eligible to be appointed
as a Judge of the High Court by reason of Article
217(2)(aa). On the other hand Shri Gopal
Subramanium, learned counsel for the respondent,
46
urged that there was a clear demarcation in the
Constitution between two sources of recruitment
namely: (1) those who were in the service of a State
or Union, and (2) those who were not in such service.
He contended that the second clause of Article 233
was attracted only to the second source and in
respect of candidates from that source the further
qualification of 7 years as an advocate or a pleader
was made obligatory for eligibility. According to Mr
Gopal Subramanium, a plain reading of both the
clauses of Article 233 showed that while the second
clause of Article 233 was applicable only to those who
were not already in service, the first clause was
applicable to those who were already in service. He
urged that any other construction would lead to
anomalous and absurd consequences such as a
junior member of the Subordinate Judicial Service
taking a leap, as it were, over senior members of the
Judicial Service with long records of meritorious
service. Both sides relied upon the decisions of this
Court in Rameshwar Dayal v. State of Punjab [AIR
1961 SC 816 : (1961) 2 SCR 874 : (1961) 2 SCJ 285]
and Chandra Mohan v. State of Uttar Pradesh [AIR
1966 SC 1987 : (1967) 1 SCR 77 : (1967) 1 LLJ 412]”
68. Since a heavy reliance is placed on behalf of the
Respondents on the said judgment, it will be relevant to refer
to the entire reasoning as recorded in the said judgment,
which reads thus:
“3. …Two points straightway project themselves
when the two clauses of Article 233 are read: The first
clause deals with “appointments of persons to be,
and the posting and promotion of, District Judges in
any State” while the second clause is confined in its
application to persons “not already in the service of
the Union or of the State”. We may mention here that
“service of the Union or of the State” has been
47
interpreted by this Court to mean Judicial Service.
Again while the first clause makes consultation by
the Governor of the State with the High Court
necessary, the second clause requires that the High
Court must recommend a person for appointment as
a District Judge. It is only in respect of the persons
covered by the second clause 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. The dichotomy is
clearly brought out by S.K. Das, J. in Rameshwar
Dayal v. State of Punjab [AIR 1961 SC 816 : (1961) 2
SCR 874 : (1961) 2 SCJ 285] where he observes:
“Article 233 is a self contained provision
regarding the appointment of District
Judges. As to a person who is already in
the service of the Union or of the State, no
special qualifications are laid down and
under clause (1) the Governor can appoint
such a person as a district judge in
consultation with the relevant High Court.
As to a person not already in service, a
qualification is laid down in clause (2) and
all that is required is that he should be an
advocate or pleader of seven years'
standing.”
Again dealing with the cases of Harbans Singh and
Sawhney it was observed:
48
“We consider that even if we proceed on
the footing that both these persons were
recruited from the Bar and their
appointment has to be tested by the
requirements of clause (2), we must hold
that they fulfilled those requirements.”
Clearly the Court was expressing the view that it was
in the case of recruitment from the Bar, as
distinguished from Judicial Service that the
requirements of clause (2) had to be fulfilled. We may
also add here earlier the Court also expressed the
view:
“… we do not think that clause (2) of
Article 233 can be interpreted in the light
of Explanations added to Articles 124 and
217”
4. In Chandra Mohan v. State of Uttar Pradesh [AIR
1966 SC 1987 : (1967) 1 SCR 77 : (1967) 1 LLJ 412]
Subba Rao, C.J. after referring to Articles 233, 234,
235, 236 and 237 stated:
“The gist of the said provisions may be
stated thus: Appointments of persons to
be, and the posting and promotion of,
district judges in any State shall be made
by the Governor of the State. There are two
sources of recruitment, namely, (i) service
of the Union or of the
State, and (ii) members of the Bar. The
said judges from the first source are
appointed in consultation with the High
Court and those from the second source
are appointed on the recommendation of
the High Court. But in the case of
appointments of persons to the judicial
service other than as district judges, they
will be made by the Governor of the State
in accordance with rules framed by him in
consultation with the High Court and the
Public Service Commission. But the High
Court has control over all the District
49
Courts and courts subordinate thereto,
subject to certain prescribed limitations.”
(emphasis supplied)
Subba Rao, C.J. then proceeded to consider whether
the Government could appoint as District Judges
persons from services other than the Judicial
Service. After pointing out that Article 233(1) was a
declaration of the general power of the Governor in
the matter of appointment of District Judges and he
did not lay down the qualifications of the candidates
to be appointed or denoted the sources from which
the recruitment had to be made, he proceeded to
state:
“But the sources of recruitment are
indicated in clause (2) thereof. Under
clause (2) of Article 233 two sources are
given, namely, (i) persons in the service of
the Union or of the State, and (ii) advocate
or pleader.”
5. Posing the question whether the expression “the
service of the Union or of the State” meant any service
of the Union or of the State or whether it meant the
Judicial Service of the Union or of the State, the
learned Chief Justice emphatically held that the
expression “the service” in Article 233(2) could only
mean the Judicial Service. But he did not mean by
the above statement that persons who are already in
the service, on the recommendation by the High
Court can be appointed as District
Judges, overlooking the claims of all other seniors in
the Subordinate Judiciary contrary to Article 14 and
Article 16 of the Constitution.
6. Thus we see that the two decisions do not support
the contention advanced on behalf of the petitioners
but, to the extent that they go, they certainly advance
the case of the respondents. We therefore, see no
reason to depart from the view already taken by us
and we accordingly dismiss the writ petitions.”
50
69. With due respect, we may state that the said judgment
does not lay down the correct position of law. The finding of
this Court in the said case that the second clause of Article
233 is confined in its application to persons “not already in the
service of the Union or of the State” is, in our view, erroneous.
The finding that there is a clear distinction between the two
sources of recruitment and the dichotomy is maintained, in
our view, is not correct. Further, the finding that the two
streams are separate until they come together by appointment
and the “same ship cannot sail both the streams
simultaneously” does not lay down the correct law.
70. No doubt that this Court in Satya Narain Singh
(supra) correctly held that in Rameshwar Dayal (supra), this
Court had expressed the view that it was in the case of
recruitment from the Bar, as distinguished from judicial
service, that the requirements of clause (2) of Article 233 of the
Constitution of having seven years’ practice had to be
fulfilled. However, it is pertinent to note that though this Court
notices that no such qualification is provided in the case of
candidates who are members of the judicial services, it is not
clear from the judgment as to whether the Court finds that
51
those who were appointed from the service in Rameshwar
Dayal (supra) was wrong or not. However, from the judgment
in Rameshwar Dayal (supra), it is obviously clear that the
Court notices that Harbans Singh and P.R. Sawhney
(Respondents therein) were appointed when they were in
service of the State.
71. This Court, in Satya Narain Singh (supra), after
referring to Chandra Mohan (supra), stated that in Chandra
Mohan (supra), the Court observed that the expression “the
service” in Article 233(2) of the Constitution could only mean
the judicial service. However, it further held that this Court in
Chandra Mohan (supra) did not mean by the above statement
that persons who are already in the service, on the
recommendation by the High Court can be appointed as
district judges, overlooking the claims of all other seniors in
the Subordinate Judiciary contrary to Articles 14 and 16 of the
Constitution.
72. We find that the abovesaid observations made in Satya
Narain Singh (supra) that if a person who is already in service
is appointed as a district judge on the recommendation of the
High Court, thereby overlooking the claims of all other seniors
52
in the subordinate judiciary, would violate Articles 14 and 16
of the Constitution is not correct. On the contrary we find that
it will enable the more meritorious candidates amongst the
judicial officers to compete with the advocates and only if they
are found to be more meritorious, will they be selected and
appointed. Not only that but Articles 14 and 16 of the
Constitution would require that an equal treatment be given to
all eligible candidates. In fact, the observations which amount
to creating a “quota” for advocates, having practice of seven
years, in the matter of direct recruitment for the post of district
judges would violate the provisions of Articles 14 and 16 of the
Constitution.
73. We, therefore, find that barring a person, who is
otherwise eligible but at the time of advertisement, is in
judicial service of the Union or of the State and is prevented
from competing with the candidates who are advocates having
practice of seven years, for appointment(s) in the stream of
direct recruitment would result in denial of an equal
treatment. When the appointments are made solely on the
basis of merit, then the claim of meritorious judicial officers
53
cannot be overlooked. It is only merit and merit alone that
shall matter.
f. Sushma Suri v. Govt. of National Capital
Territory of Delhi and Another
74. The learned Senior Counsel/counsel appearing for the
Respondents also placed reliance on the case of Sushma Suri
v. Govt. of National Capital Territory of Delhi and
Another12. In the said case, the appellant therein who was
appointed as Assistant Government Advocate and thereafter
was promoted to the post of Additional Government Advocate
in this Court, had applied, in response to the advertisement
issued for recruitment to the Delhi Higher Judicial Service.
When she was not called for the interview, she filed a writ
petition before the High Court, which was dismissed. While
considering the provision contained in Article 233 of the
Constitution, this Court observed thus:
“3. …Obviously, this Rule has been framed to be in
conformity with Article 233 of the Constitution.
Article 233(1) thereof provides for appointments of
persons who are already in service while Article
233(2) provides that a person not already in service
is eligible for appointment if he has been for not less
than seven years an advocate or a pleader and is
recommended for the purpose by the High Court.
Referring to the expression “service” in Article 233(2)
12 (1999) 1 SCC 330
54
it has been held by this Court in Chandra
Mohan v. State of U.P. [AIR 1966 SC 1987 : (1967) 1
LLJ 412] and Satya Narain Singh v. High Court of
Judicature at Allahabad [(1985) 1 SCC 225 : 1985
SCC (L&S) 196 : AIR 1985 SC 308] that it means
“judicial service”. However, it is not the contention
either before the High Court or before us that the
appellant is in judicial service. On the other hand the
contention is that she has more than seven years’
experience as an advocate and, therefore, is fully
eligible to be appointed to the Higher Judicial Service
and the High Court was not justified in not
considering her case for appointment. Hence we have
to examine the only question whether the appellant
is an “advocate” for the purpose of Article 233(2) of
the Constitution and “from the Bar” as envisaged in
Rule 7 of the Rules.”
75. For the reasons that are recorded by us hereinabove,
we find that the finding in the case of Sushma Suri (supra)
that Article 233(1) of the Constitution provides for
appointments of persons who are already in service, while
Article 233(2) of the Constitution provides that a person not
already in service is eligible for appointment if he has been for
not less than seven years an advocate or a pleader and is
recommended for the purpose by the High Court, is again
contrary to the provisions of Article 233 of the Constitution.
76. This Court, in the said case, observed thus:
“6. If a person on being enrolled as an advocate
ceases to practise law and takes up an employment,
such a person can by no stretch of imagination be
termed as an advocate. However, if a person who is
55
on the rolls of any Bar Council is engaged either by
employment or otherwise of the Union or the State or
any corporate body or person practises before a court
as an advocate for and on behalf of such
Government, corporation or authority or person, the
question is whether such a person also answers the
description of an advocate under the Act. That is the
precise question arising for our consideration in this
case.”
77. It can thus be seen that this Court in the case of
Sushma Suri (supra) has held that if a person on being
enrolled as an advocate ceases to practise law and takes up an
employment, then such a person can by no stretch of
imagination be termed as an “advocate”. This Court further
posed a question for its consideration that if a person who is
on the roll of any Bar Council is engaged either by employment
or otherwise of the Union or the State or a body corporate or
person practises before a Court as an advocate for and on
behalf of such Government, corporation or authority or
person, whether such a person also answers the description of
an advocate under the Act.
78. To answer the said question, this Court considered the
provisions under the Advocates Act, 1961 and observed that
for the purpose of the Advocates Act and the rules framed
thereunder, the Law Officer (Public Prosecutor or Government
56
Counsel) will continue to be an advocate. It was observed that
the intention of the relevant rules is that a candidate eligible
for appointment to Higher Judicial Service should be a person
who regularly practices before the Court or tribunal, appearing
for a client.
79. This Court, in the said case, thereafter observed thus:
“9. In Oma Shanker Sharma case [ CWP No. 1961 of
1987] the Delhi High Court approached the matter in
too pedantic a manner losing sight of the object of
recruitment under Article 233(2) of the Constitution.
Whenever any recruitment is conducted to fill up any
post, the area of recruitment must be as broad-based
as the Rules permit. To restrict it to advocates who
are not engaged in the manner stated by us earlier in
this order is too narrow a view, for the object of
recruitment is to get persons of necessary
qualification, experience and knowledge of life. A
Government Counsel may be a Public Prosecutor or
Government Advocate or a Government Pleader. He
too gets experience in handling various types of cases
apart from dealing with the officers of the
Government. Experience gained by such persons
who fall in this description cannot be stated to be
irrelevant nor detrimental to selection to the posts of
the Higher Judicial Service. The expression
“members of the Bar” in the relevant Rule would only
mean that particular class of persons who are
actually practising in courts of law as pleaders or
advocates. In a very general sense an advocate is a
person who acts or pleads for another in a court and
if a Public Prosecutor or a Government Counsel is on
the rolls of the Bar Council and is entitled to practise
under the Act, he answers the description of an
advocate.”
57
80. It can thus be seen that this Court has clearly held that
the object of the recruitment under Article 233 of the
Constitution should not be approached in a “pedantic
manner”. It has been observed that whenever a recruitment is
conducted, the area of recruitment must be “as broad-based
as the rules permit”. It has been held that the object of
recruitment is to get persons of necessary qualification,
experience and knowledge of life. This Court held that a
Government Counsel may be a Public Prosecutor or
Government Advocate or a Government Pleader who too gets
experience in handling various types of cases apart from
dealing with the officers of the Government. It has been held
that experience gained by such persons who fall in this
description cannot be stated to be irrelevant nor detrimental
in selection to the posts of the Higher Judicial Service. This
Court observed that the expression “members of the Bar” in
the relevant rule would only mean that particular class of
persons who are actually practising in courts of law as
pleaders or advocates. This Court held that if a Public
Prosecutor or a Government Counsel is on the roll of the Bar
Council and is entitled to practise under the Act, he answers
58
the description of an advocate. This Court clearly held that an
advocate employed by the Government or a body corporate as
its law officer, even on terms of payment of salary would not
cease to be an advocate in terms of Rule 49 of the Bar Council
of India Rules.
81. It can thus be seen that the observations of this Court
in Sushma Suri (supra) rather than fully supporting the
contention of the Respondents, to some extent, support the
contentions of the Petitioners. This Court in the said case has
emphasized that the object of recruitment is to get persons of
necessary qualification, experience and knowledge of life. It
has been observed that the Government Advocate gets
experience in handling various types of cases apart from
dealing with the officers of the Government. It has been held
that the experience gained by such persons who fall in this
description cannot be stated to be irrelevant nor detrimental
to selection to the posts of the Higher Judicial Service.
g. Deepak Aggarwal v. Keshav Kaushik and
Others
82. Again, in the case of Deepak Aggarwal (supra), relied
upon by the learned Senior Counsel/Counsel for the
59
Respondents, the five appellants therein who were working as
Assistant District Attorney, Deputy Advocate General and
Public Prosecutor, etc., were selected by direct recruitment to
the post of Additional District & Sessions Judge in the
Haryana Superior Judicial Service. The High Court had
quashed their appointment on the ground that they did not
have the requisite criteria to qualify for the recruitment as
contemplated in Article 233 of the Constitution. This Court,
after considering the Constitution Bench judgments in the
cases of Rameshwar Dayal (supra) and Chandra Mohan
(supra) and other judgments dealing with the similar issue,
observed thus:
“89. We do not think there is any doubt about the
meaning of the expression “advocate or pleader” in
Article 233(2) of the Constitution. This should bear
the meaning it had in law preceding the Constitution
and as the expression was generally understood. The
expression “advocate or pleader” refers to legal
practitioner and, thus, it means a person who has a
right to act and/or plead in court on behalf of his
client. There is no indication in the context to the
contrary. It refers to the members of the Bar
practising law. In other words, the expression
“advocate or pleader” in Article 233(2) has been used
for a member of the Bar who conducts cases in court
or, in other words acts and/or pleads in court on
behalf of his client. In Sushma Suri [(1999) 1 SCC
330 : 1999 SCC (L&S) 208], a three-Judge Bench of
this Court construed the expression “members of the
Bar” to mean class of persons who were actually
60
practising in courts of law as pleaders or advocates.
A Public Prosecutor or a Government Counsel on the
rolls of the State Bar Council and entitled to practise
under the 1961 Act was held to be covered by the
expression “advocate” under Article 233(2). We
respectfully agree.”
83. It can thus be seen that the meaning given to the term
“advocate or pleader” in the case of Sushma Suri (supra) has
been affirmed by this Court in the case of Deepak Aggarwal
(supra). This Court further observed thus:
“99. …The factum of employment is not material but
the key aspect is whether such employment is
consistent with his practising as an advocate or, in
other words, whether pursuant to such employment,
he continues to act and/or plead in the courts. If the
answer is yes, then despite employment he continues
to be an advocate. On the other hand, if the answer
is in the negative, he ceases to be an advocate.”
84. It can thus be seen that this Court has reiterated the
position laid down in the case of Sushma Suri (supra) that
the factum of employment is not material but the key aspect
is whether such employment is consistent with his practising
as an advocate or, in other words, whether pursuant to such
employment, he continues to act and/or plead in the courts.
This Court held that despite employment he continues to be
an advocate.
61
85. Therefore, the question that is required to be
considered by us is if the purpose of recruitment is to get
persons of necessary qualification, experience and knowledge
of life, then as to whether the judicial officer who is in judicial
service could be denied an opportunity to be recruited in the
posts meant to be filled by way of direct recruitment. In that
respect, we are of the considered view that it cannot be denied
that the experience a judicial officer gets by working as a judge
can only work to the betterment of the district judiciary. The
question that we would have to therefore consider in present
case is as to whether such experienced persons having rich
judicial experience can be permitted to participate in the
process of direct recruitment for the post of district judge.
h. Vijay Kumar Mishra and Another v. High Court
of Judicature at Patna
86. In Vijay Kumar Mishra and Another v. High Court
of Judicature at Patna13, a case specifically relied upon by
the learned Senior Counsel appearing on behalf of the
Petitioners, the appellants therein had appeared in the
recruitment for the Subordinate Judicial Service of Bihar as
13 (2016) 9 SCC 313
62
well as District Judge Entry Level (Direct from Bar). It will be
relevant to note that in the said case the process for both the
recruitments was held simultaneously. The writ petitioners
before the Patna High Court appeared in the preliminary and
mains examination of District Judge Entry Level (Direct from
Bar). In the meantime, they were declared qualified for the
Subordinate Judicial Service in 28th Batch and accordingly
joined the Subordinate Judicial Service of the State of Bihar
in August 2015. Subsequently, the result of the Mains
Examination of the District Judge Entry Level (Direct from
Bar) was published in January 2016. Both the writ petitioners
were declared qualified in the Mains Examination. The High
Court had published schedule for interview and issued call
letters to both of them. One of the conditions mentioned
therein was furnishing of a ‘No Objection Certificate of the
Employer’. Therefore, the writ petitioners filed a representation
before the Registrar General, Patna High Court seeking to
appear in the said interview. The request was declined on the
ground that they were already in the State Judicial
Subordinate Service. It was further informed to the writ
petitioners that if they desire to appear in the interview, they
63
may choose to resign before participating in the interview and
that the said resignation, once tendered, would not be
permitted to be withdrawn. The rejection of their
representation was the subject matter of a challenge before the
High Court. The High Court rejected the writ application.
Hence, the writ petitioners came before this Court.
87. It will be gainful to refer to the following observations
in the judgment delivered by Jasti Chelameshwar, J.:
“5. For any youngster, the choice must appear very
cruel, to give up the existing employment for the
uncertain possibility of securing a better
employment. If the appellant accepted the advice of
the High Court but eventually failed to get selected
and appointed as a District Judge, he might have to
regret his choice for the rest of his life. Unless
providence comes to the help of the appellant to
secure better employment elsewhere or become a
successful lawyer, if he chooses to practise
thereafter, the choice is bound to ruin the appellant.
The High Court we are sure did not intend any such
unwholesome consequences. The advice emanated
from the High Court's understanding of the purport
of Article 233(2). Our assay is whether the High
Court's understanding is right.
6. Article 233(1) stipulates that appointment of
District Judges be made by the Governor of the State
in consultation with the High Court exercising
jurisdiction in relation to such State. However,
Article 233(2) declares that only a person not already
in the service of either the Union or of the State shall
be eligible to be appointed as District Judge. The said
Article is couched in negative language creating a bar
for the appointment of certain class of persons
64
described therein. It does not prescribe any
qualification. It only prescribes a disqualification.”
88. It can thus be seen that this Court once again went on
to interpret Article 233(2) to mean that only a person not
already in the service of either the Union or the State shall be
eligible to be appointed as District Judge. The Court observed
that the said Article is couched in “negative language” creating
a bar for the appointment of certain class of persons described
therein. It was further observed that it does not prescribe any
qualification but only prescribes disqualification. With due
respect, we may observe that the said observations of this
Court are contrary to the law laid down by this Court in the
Constitution Bench judgment of Chandra Mohan (supra).
89. The Court in the case of Vijay Kumar Mishra (supra)
goes on the premise that there is a distinction between
selection and appointment. It was held by this Court that every
person who is successful in the selection process undertaken
by the State for the purpose of filling up of certain posts under
it, does not acquire any right to be appointed automatically.
This Court noted that Article 233(2) only prohibits the
65
appointment of a person who is already in the service of the
Union or the State, but not the selection of such a person.
90. After referring to the judgments of this Court in the
cases of Satya Narain Singh (supra) and Deepak Aggarwal
(supra), the two-Judge Bench in the said case observed that
the question as to at what stage the bar comes into operation
was not an issue before the Court nor did it go into that
question. The Court, therefore, allowed the appellants therein
to participate in the selection process without insisting upon
their resignation from their current employment. The Court
further directed that if the appellants therein were found
suitable, it was open to them to resign from the current
employment and opt for the post of District Judge, if they so
desire.
91. Abhay Manohar Sapre, J., in his separate concurring
judgment in the case of Vijay Kumar Mishra (supra) observed
thus:
“22. This submission though looks attractive, is not
acceptable. Neither the text of Article and nor the
words occurring in Article 233(2) suggest such
interpretation. Indeed, if his argument is accepted, it
would be against the spirit of Article 233(2). My
learned Brother for rejecting this argument has
narrated the consequences, which are likely to arise
66
in the event of accepting such argument and I agree
with what he has narrated.
23. In my view, there lies a subtle distinction
between the words “selection” and “appointment” in
service jurisprudence. (See Prafulla Kumar
Swain v. Prakash Chandra Misra [Prafulla Kumar
Swain v. Prakash Chandra Misra, 1993 Supp (3) SCC
181 : 1993 SCC (L&S) 960 : (1993) 25 ATC 242] .)
When the Framers of the Constitution have used the
word “appointed” in clause (2) of Article 233 for
determining the eligibility of a person with reference
to his service then it is not possible to read the word
“selection” or “recruitment” in its place. In other
words, the word “appointed” cannot be read to
include the word “selection”, “recruitment” or
“recruitment process”.
24. In my opinion, there is no bar for a person to
apply for the post of District Judge, if he otherwise,
satisfies the qualifications prescribed for the post
while remaining in service of the Union/State. It is
only at the time of his appointment (if occasion so
arises) the question of his eligibility arises. Denying
such person to apply for participating in selection
process when he otherwise fulfils all conditions
prescribed in the advertisement by taking recourse to
clause (2) of Article 233 would, in my opinion,
amount to violating his right guaranteed under
Articles 14 and 16 of the Constitution of India.
25. It is a settled principle of rule of interpretation
that one must have regard to subject and the object
for which the Act is enacted. To interpret a statute in
a reasonable manner, the Court must place itself in
a chair of reasonable legislator/author. So done, the
rules of purposive construction have to be resorted to
so that the object of the Act is fulfilled. Similarly, it is
also a recognised rule of interpretation of statutes
that expressions used therein should ordinarily be
understood in the sense in which they best
harmonise with the object of the statute and which
effectuate the object of the legislature.
(See Interpretation of Statutes, 12th Edn., pp. 119
67
and 127 by G.P. Singh). The aforesaid principle, in
my opinion, equally applies while interpreting the
provisions of Article 233(2) of the Constitution.”
i. Dheeraj Mor v. High Court of Delhi
92. That brings us to the decision of this Court in the case
of Dheeraj Mor v. High Court of Delhi14 wherein a two-Judge
Bench found that in view of the various decisions of this Court,
the major issue that arises for its consideration is as to
whether the eligibility for appointment as district judge is to
be seen at the time of appointment or at the time of application
or both. The matter was, therefore, directed to be placed before
the then Chief Justice of India so as to constitute a larger
Bench of this Court. On reference, this Court decided the
matter on 19th February 2020 in Dheeraj Mor (supra).
93. The learned three-Judge Bench in the said case, upon
interpretation of Article 233 of the Constitution, held that the
only mode provided for the appointment of in-service
candidates to the post of district judge was by way of
promotion. According to the three learned Judges, this
14 (2018) 4 SCC 619
68
interpretation has already been laid down by the Constitution
Bench in the case of Chandra Mohan (supra).
94. It will be relevant to refer to paragraph 19 of Dheeraj
Mor (supra) which reads thus:
“19. It is apparent from the decision in Chandra
Mohan v. State of U.P. [Chandra Mohan v. State of
U.P., (1967) 1 SCR 77 : AIR 1966 SC 1987] that this
Court has laid down that concerning District Judges
recruited directly from the Bar, the Governor can
appoint only advocates recommended by the High
Court and Rule 14 which provided for judicial officers
to be appointed as direct recruits was struck down
by this Court to be ultra vires. Thus, the decision is
squarely against the submission espoused on behalf
of in-service candidates. In the abovementioned para
11 of Chandra Mohan [Chandra Mohan v. State of
U.P., (1967) 1 SCR 77 : AIR 1966 SC 1987] , the
position is made clear. In Chandra Mohan [Chandra
Mohan v. State of U.P., (1967) 1 SCR 77 : AIR 1966
SC 1987] the Court held that only advocates can be
appointed as direct recruits, and inter alia Rule 14
providing for executive officers' recruitment was
struck down. This Court has held that the expression
“service of State or Union” means judicial service, it
only refers to the source of recruitment. Dichotomy
of two sources of recruitment/appointment has been
culled out in the decision.”
95. It can thus be seen that the three learned Judges held
that in Chandra Mohan (supra), this Court has laid down that
insofar as district judges recruited directly from the Bar are
concerned, the Governor can appoint only advocates
recommended by the High Court and Rule 14 therein which
69
provided for the judicial officers to be appointed as direct
recruits was struck down by this Court as ultra vires. The
Court noted that the position was squarely against the
submissions espoused on behalf of the in-service candidates.
The Court further reiterated that it was only the advocates who
could be appointed as district judges by way of direct
recruitment. The three-Judge Bench also held that the law laid
down in the case of Rameshwar Dayal (supra) was also
against the submissions raised on behalf of the in-service
candidates.
96. This Court in the said case, thereafter, referring to the
judgments in Satya Narain Singh (supra), Deepak
Aggarwal (supra) and Vijay Kumar Mishra (supra), held that
an in-service candidate cannot apply against the posts
reserved for advocates/pleaders as he has to be in continuous
practice in the past and at the time when he has applied and
is appointed. This Court, therefore, held that the law laid down
in Vijay Kumar Mishra (supra) was not correct.
97. An argument was placed before this Court in Dheeraj
Mor (supra) with regard to denial of equal opportunity. While
rejecting the said argument, the Court observed thus:
70
“43.…..We find that there is no violation of equal
opportunity. There is a wide search for talent for
inducting in the judicial service as well as in direct
recruitment from Bar, and the best candidates are
identified and recruited. Persons from unusual
places are also given the opportunity to stake their
claim in pursuit of their choice. In State of
Bihar v. Bal Mukund Sah [State of Bihar v. Bal
Mukund Sah, (2000) 4 SCC 640 : 2000 SCC (L&S)
489] , this Court has observed that onerous duty is
cast on the High Court under the constitutional
scheme. It has been given a prime and paramount
position in the matter with the necessity of choosing
the best available talent for manning the subordinate
judiciary. Thus, we find that there is no violation of
any principle of the Universal Declaration of Human
Rights, 1948 and the International Covenant on Civil
and Political Rights and International Covenant on
Economic, Social and Cultural Rights.”
98. In conclusion, this Court observed thus:
“45. In view of the aforesaid discussion, we are of the
opinion that for direct recruitment as District Judge
as against the quota fixed for the
advocates/pleaders, incumbent has to be practising
advocate and must be in practice as on the cut-off
date and at the time of appointment he must not be
in judicial service or other services of the Union or
State. For constituting experience of 7 years of
practice as advocate, experience obtained in judicial
service cannot be equated/combined and
advocate/pleader should be in practice in the
immediate past for 7 years and must be in practice
while applying on the cut-off date fixed under the
rules and should be in practice as an advocate on the
date of appointment. The purpose is recruitment
from Bar of a practising advocate having minimum 7
years' experience.
46. In view of the aforesaid interpretation of Article
233, we find that rules debarring judicial officers
71
from staking their claim as against the posts reserved
for direct recruitment from Bar are not ultra vires as
rules are subservient to the provisions of the
Constitution.”
99. The answers to the reference in the main judgment of
Arun Mishra, J. is as under:
“47. We answer the reference as under:
47.1. The members in the judicial service of the State
can be appointed as District Judges by way of
promotion or limited competitive examination.
47.2. The Governor of a State is the authority for the
purpose of appointment, promotion, posting and
transfer, the eligibility is governed by the Rules
framed under Articles 234 and 235.
47.3. Under Article 232(2) (sic), an Advocate or a
pleader with 7 years of practice can be appointed as
District Judge by way of direct recruitment in case
he is not already in the judicial service of the Union
or a State.
47.4. For the purpose of Article 233(2), an Advocate
has to be continuing in practice for not less than 7
years as on the cut-off date and at the time of
appointment as District Judge. Members of judicial
service having 7 years' experience of practice before
they have joined the service or having combined
experience of 7 years as lawyer and member of
judiciary, are not eligible to apply for direct
recruitment as a District Judge.
47.5. The rules framed by the High Court prohibiting
judicial service officers from staking claim to the post
of District Judge against the posts reserved for
Advocates by way of direct recruitment, cannot be
said to be ultra vires and are in conformity with
Articles 14, 16 and 233 of the Constitution of India.
47.6. The decision in Vijay Kumar Mishra [Vijay
Kumar Mishra v. High Court of Patna, (2016) 9 SCC
72
313 : (2016) 2 SCC (L&S) 606] providing eligibility, of
judicial officer to compete as against the post of
District Judge by way of direct recruitment, cannot
be said to be laying down the law correctly. The same
is hereby overruled.”
100. Thereafter, in the judgment delivered by Arun Mishra,
J. for himself and Vineet Saran, J., in paragraph 48, the Court
held that wherever such in-service candidates have been
appointed by way of direct recruitment against the posts
reserved for Bar, they shall be discontinued and be reverted to
their original post.
101. In his separate concurring judgment, S. Ravindra
Bhat, J., after correctly narrating as to what was laid down by
the Constitution Bench in Rameshwar Dayal (supra),
distinguished it on the reasoning that this Court had no
occasion to deal with any rules framed under Article 233/234
in relation to the appointment for the post of district judge.
102. Bhat, J., further correctly referred to the ratio of
Chandra Mohan (supra) as under:
“67. Thereafter, the Court held that the expression
“not already in the service” of the Union or any State
meant that those holding civil posts, or members of
civil services i.e. occupying non-judicial posts, were
ineligible to compete for selection and appointment
as District Judge; thus, only those in service as
73
Judges, or members of judicial services could be
considered for appointment.”
103. It can thus be seen that Bhat, J., noticed that in
Chandra Mohan (supra), the Constitution Bench held that
only those in service as judges or members of judicial services
could be considered for appointment. However, after noticing
the same and noticing the judgments in the case of Satya
Narain (supra) and Deepak Aggarwal (supra), he observed
thus:
“71. It is clear that what this Court had to consider
was whether Public Prosecutors and Government
Advocates were barred from applying for direct
recruitments (i.e. whether they could be considered
to have been in practice) and whether—during their
course of their employment, as Public Prosecutors,
etc. they could be said to have “been for not less than
seven years” practising as advocates. The Court quite
clearly ruled that such Public
Prosecutors/Government Counsel (as long as they
continued to appear as advocates before the court)
answered the description and were therefore eligible.”
104. In conclusion, Bhat, J., considered Rameshwar Dayal
(supra) and Chandra Mohan (supra) in the following words:
“75. It is thus evident, that Rameshwar
Dayal [Rameshwar Dayal v. State of Punjab, (1961) 2
SCR 874 : AIR 1961 SC 816] was mainly concerned
with the question whether practice as a pleader or
advocate, in pre-Partition India could be reckoned,
for the purpose of calculating the seven-year period,
74
stipulated in Article 233(2). No doubt, there are some
observations, with respect to appointments being
referable to Article 233(1). However, the important
aspect which is to be kept in mind, is that no rules
were discussed; the experience of the Advocates
concerned, who were appointed as District Judges,
was for a considerable period, in pre-Partition India,
in the erstwhile undivided Punjab. Chandra
Mohan [Chandra Mohan v. State of U.P., (1967) 1 SCR
77 : AIR 1966 SC 1987] , on the other hand is a clear
authority—and an important judgment, on the
aspect that those in the service of or holding posts,
under the Union or States,—if they are not in judicial
service—are ineligible for appointment as District
Judges, under Article 233(2) of the Constitution. The
corollary was that those holding judicial posts were
not barred as holders of office or posts under the
Union or the State. Significantly, this Court
in Chandra Mohan [Chandra Mohan v. State of U.P.,
(1967) 1 SCR 77 : AIR 1966 SC 1987] , invalidated a
rule which rendered both officers holding executive
positions, under the State, and those holding judicial
posts, eligible to apply for appointment under Article
233(2)….”
105. Bhat J., with due respect, went wrong while holding
that Chandra Mohan (supra) invalidated Rule 14 therein,
rendering both executive officers under the State and persons
holding judicial posts ineligible to apply under Article 233(2).
In fact, Chandra Mohan (supra) only held the rules
empowering recruitment of District Judges from “judicial
officers” to be unconstitutional. “Judicial Officers” as noticed
in the Rule was held in the decision itself to be misleading
75
since: “it is common case that they belong to the executive
branch of the Government, though they perform certain revenue
and magisterial functions” (sic). It was held in Chandra Mohan
(supra):
“……. But Art. 233(1) is nothing more than a
declaration of the general power of the Governor in
the matter of appointment of district judges. It does
not lay down the qualifications of the candidates to
be appointed or denote the sources from which the
recruitment has to be made. But the sources of
recruitment are indicated in cl. (2) thereof. Under Cl.
(2) of Art. 233 two sources are given, namely, (i)
persons in the service of the Union or of the State,
and (ii) advocate or pleader………”
106. The reference is answered by Bhat, J., in the following
terms:
“76. A close reading of Article 233, other provisions
of the Constitution, and the judgments discussed
would show the following:
76.1. That the Governor of a State has the authority
to make “appointments of persons to be, and the
posting and promotion of, District Judges in any
State [Article 233(1)].
76.2. While so appointing the Governor is bound to
consult the High Court [Article 233(1) : Chandra
Mohan [Chandra Mohan v. State of U.P., (1967) 1 SCR
77 : AIR 1966 SC 1987] and Chandramouleshwar
Prasad v. High Court of Patna [Chandramouleshwar
Prasad v. High Court of Patna, (1969) 3 SCC 56 :
(1970) 2 SCR 666.
76
76.3. Article 233(1) cannot be construed as a source
of appointment; it merely delineates as to who is the
appointing authority.
76.4. In matters relating to initial posting, initial
appointment, and promotion of District Judges, the
Governor has the authority to issue the order;
thereafter it is up to the High Court, by virtue of
Article 235, to exercise control and superintendence
over the conditions of service of such District Judges.
(See State of Assam v. Ranga Mohd. [State of
Assam v. Ranga Mohd., (1967) 1 SCR 454 : AIR 1967
SC 903] ,
76.5. Article 233(2) is concerned only
with eligibility of those who can be considered for
appointment as District Judge. The Constitution
clearly states that one who has been for not less than
seven years, “an advocate or pleader” and one who is
“not already in the service of the Union or of the State”
(in the sense that such person is not a holder of a
civil or executive post, under the Union or of a State)
can be considered for appointment, as a District
Judge. Significantly, the eligibility—for both
categories, is couched in negative terms. Clearly, all
that the Constitution envisioned was that an
advocate with not less than seven years' practice
could be appointed as a District Judge, under Article
233(2).
76.6. Significantly, Article 233(2) ex facie does not
exclude judicial officers from consideration for
appointment to the post of District Judge. It,
however, equally does not spell out any criteria for
such category of candidates. This does not mean
however, that if they or any of them, had seven years'
practice in the past, can be considered eligible,
because no one amongst them can be said to answer
the description of a candidate who “has been for not
less than seven years” “an advocate or a pleader” (per
Deepak Agarwal i.e. that the applicant/candidate
should be an advocate fulfilling the condition of
practice on the date of the eligibility condition, or
applying for the post). The sequitur clearly is that a
77
judicial officer is not one who has been for not less
than seven years, an advocate or pleader.”
107. While rejecting the argument with regard to denial of
equal opportunity to the in-service candidates, Bhat J.,
observed thus:
“82. In the opinion of this Court, there is an inherent
flaw in the argument of the petitioners. The
classification or distinction made—between
advocates and judicial officers, per se is a
constitutionally sanctioned one. This is clear from a
plain reading of Article 233 itself. Firstly, Article
233(1) talks of both appointments and promotions.
Secondly, the classification is evident from the
description of the two categories in Article 233(2) :
one “not already in the service of the Union or of the
State” and the other “if he has been for not less than
seven years as an advocate or a pleader”. Both
categories are to be “recommended by the High Court
for appointment”. The intent here was that in both
cases, there were clear exclusions i.e. advocates with
less than seven years' practice (which meant,
conversely that those with more than seven years'
practice were eligible) and those holding civil posts
under the State or the Union. The omission of judicial
officers only meant that such of them, who were
recommended for promotion, could be so appointed
by the Governor. The conditions for their promotion
were left exclusively to be framed by the High Courts.
83. In view of the above analysis, since the
Constitution itself makes a distinction between
advocates on the one hand, and judicial officers, on
the other, the argument of discrimination is
insubstantial. If one examines the scheme of
appointment from both channels closely—as Mishra,
J. has done—it is evident that a lion's share of posts
are to be filled by those in the judicial service. For the
past two decades, only a fourth (25%) of the posts in
78
the cadre of District Judges (in every State) are
earmarked for advocates; the balance 75% to be filled
exclusively from amongst judicial officers. 50%, (out
of 75%) is to be filled on the basis of seniority-cum-
merit, whereas 25% (of the 75%) is to be filled by
departmental examination. This examination is
confined to members of the judicial service of the
State concerned. The decision of this Court in All
India Judges' Assn. v. Union of India [All India Judges
Assn. v. Union of India, (2010) 15 SCC 170 : (2013) 1
SCC (L&S) 548] , reduced the limited departmental
examination quota (out of turn promotion quota)
from 25% to 10% which took effect from 1-1-2011.
Thus, cumulatively, even today, judicial officers are
entitled to be considered for appointment, by
promotion, as District Judges, to the extent of 75%
of the cadre relating to that post, in every State. It is
therefore, held that the exclusion—by the rules, from
consideration of judicial officers, to the post of
District Judges, in the quota earmarked for
Advocates with the requisite standing, or practice,
conforms to the mandate of Articles 233-235, and the
rules are valid.”
108. Bhat, J., went to the extent of saying that if rules of
any State permit judicial officers to compete against the
advocates’ quota for appointment as district judges, they are
susceptible to challenge. He observed that enabling judicial
officers to compete in the quota earmarked for advocates would
potentially result in no one from the stream of advocates with
seven or more years’ practice being selected. He held that this
will be contrary to the mandate of Article 233(2). Bhat, J.,
therefore, held that Vijay Kumar Mishra (supra), to the extent
79
that it is contrary to Ashok Kumar Sharma and Others v.
Chander Shekhar and Another,15 as regards participation
in the selection process of candidates who are members of the
judicial service, for appointment to the post of district judge,
from amongst the quota earmarked for advocates with seven
years’ practice, was wrongly decided and in the result
overruled the same.
j. All India Judges Association and Others v.
Union of India and Others
109. Reliance was also placed by the learned Senior
Counsel/counsel appearing on behalf of the Respondents on
the following observations made by three learned Judges of
this Court in the case of All India Judges Association and
Others v. Union of India and Others16.
“27. Another question which falls for consideration is
the method of recruitment to the posts in the cadre
of Higher Judicial Service i.e. District Judges and
Additional District Judges. At the present moment,
there are two sources for recruitment to the Higher
Judicial Service, namely, by promotion from amongst
the members of the Subordinate Judicial Service and
by direct recruitment. The subordinate judiciary is
the foundation of the edifice of the judicial system. It
is, therefore, imperative, like any other foundation,
that it should become as strong as possible. The
weight on the judicial system essentially rests on the
15 (1997) 4 SCC 18
16 (2002) 4 SCC 247
80
subordinate judiciary. While we have accepted the
recommendation of the Shetty Commission which
will result in the increase in the pay scales of the
subordinate judiciary, it is at the same time
necessary that the judicial officers, hard-working as
they are, become more efficient. It is imperative that
they keep abreast of knowledge of law and the latest
pronouncements, and it is for this reason that the
Shetty Commission has recommended the
establishment of a Judicial Academy, which is very
necessary. At the same time, we are of the opinion
that there has to be certain minimum standard,
objectively adjudged, for officers who are to enter the
Higher Judicial Service as Additional District Judges
and District Judges. While we agree with the Shetty
Commission that the recruitment to the Higher
Judicial Service i.e. the District Judge cadre from
amongst the advocates should be 25 per cent and the
process of recruitment is to be by a competitive
examination, both written and viva voce, we are of
the opinion that there should be an objective method
of testing the suitability of the subordinate judicial
officers for promotion to the Higher Judicial Service.
Furthermore, there should also be an incentive
amongst the relatively junior and other officers to
improve and to compete with each other so as to excel
and get quicker promotion. In this way, we expect
that the calibre of the members of the Higher Judicial
Service will further improve. In order to achieve this,
while the ratio of 75 per cent appointment by
promotion and 25 per cent by direct recruitment to
the Higher Judicial Service is maintained, we are,
however, of the opinion that there should be two
methods as far as appointment by promotion is
concerned : 50 per cent of the total posts in the
Higher Judicial Service must be filled by promotion
on the basis of principle of merit-cum-seniority. For
this purpose, the High Courts should devise and
evolve a test in order to ascertain and examine the
legal knowledge of those candidates and to assess
their continued efficiency with adequate knowledge
of case law. The remaining 25 per cent of the posts in
81
the service shall be filled by promotion strictly on the
basis of merit through the limited departmental
competitive examination for which the qualifying
service as a Civil Judge (Senior Division) should be
not less than five years. The High Courts will have to
frame a rule in this regard.
28. As a result of the aforesaid, to recapitulate, we
direct that recruitment to the Higher Judicial Service
i.e. the cadre of District Judges will be:
(1)(a) 50 per cent by promotion from
amongst the Civil Judges (Senior Division)
on the basis of principle of merit-cum-
seniority and passing a suitability test;
(b) 25 per cent by promotion strictly on the
basis of merit through limited competitive
examination of Civil Judges (Senior
Division) having not less than five years'
qualifying service; and
(c) 25 per cent of the posts shall be filled by
direct recruitment from amongst the eligible
advocates on the basis of the written and
viva voce test conducted by respective High
Courts.
(2) Appropriate rules shall be framed as
above by the High Courts as early as
possible.
29. Experience has shown that there has been a
constant discontentment amongst the members of
the Higher Judicial Service in regard to their seniority
in service. For over three decades a large number of
cases have been instituted in order to decide the
relative seniority from the officers recruited from the
two different sources, namely, promotees and direct
recruits. As a result of the decision today, there will,
in a way, be three ways of recruitment to the Higher
Judicial Service. The quota for promotion which we
have prescribed is 50 per cent by following the
principle “merit-cum-seniority”, 25 per cent strictly
on merit by limited departmental competitive
examination and 25 per cent by direct recruitment.
82
Experience has also shown that the least amount of
litigation in the country, where quota system in
recruitment exists, insofar as seniority is concerned,
is where a roster system is followed. For example,
there is, as per the rules of the Central Government,
a 40-point roster which has been prescribed which
deals with the quotas for Scheduled Castes and
Scheduled Tribes. Hardly, if ever, there has been a
litigation amongst the members of the service after
their recruitment as per the quotas, the seniority is
fixed by the roster points and irrespective of the fact
as to when a person is recruited. When roster system
is followed, there is no question of any dispute
arising. The 40-point roster has been considered and
approved by this Court in R.K. Sabharwal v. State of
Punjab [R.K. Sabharwal v. State of Punjab, (1995) 2
SCC 745 : 1995 SCC (L&S) 548] . One of the methods
of avoiding any litigation and bringing about
certainty in this regard is by specifying quotas in
relation to posts and not in relation to the vacancies.
This is the basic principle on the basis of which the
40-point roster works. We direct the High Courts to
suitably amend and promulgate seniority rules on
the basis of the roster principle as approved by this
Court in R.K. Sabharwal case [R.K.
Sabharwal v. State of Punjab, (1995) 2 SCC 745 :
1995 SCC (L&S) 548] as early as possible. We hope
that as a result thereof there would be no further
dispute in the fixation of seniority. It is obvious that
this system can only apply prospectively except
where under the relevant rules seniority is to be
determined on the basis of quota and rotational
system. The existing relative seniority of the
members of the Higher Judicial Service has to be
protected but the roster has to be evolved for the
future. Appropriate rules and methods will be
adopted by the High Courts and approved by the
States, wherever necessary by 31-3-2003.”
83
110. In addition to the reliance placed on the judgment of
this Court in the case of All India Judges Association
(supra), it is submitted by the learned Senior Counsel/counsel
appearing on behalf of the Respondents that understanding
the provisions of Article 233 of the Constitution in the correct
perspective, the First National Judicial Pay Commission under
the Chairmanship of Justice K. Jagannatha Shetty, a former
Judge of this Court,17 itself recommended bringing out an
amendment to Article 233(2) so as to permit in-service
candidates to compete in the posts reserved for direct
recruitment. On the contrary by also placing reliance on the
Shetty Commission, the correctness of the aforesaid view in
Dheeraj Mor (supra) is sought to be reconsidered by the
learned Senior Counsel appearing on behalf of the Petitioners.
111. It is also the case of the Respondents that the
judgments of the Constitution Bench of this Court in the cases
of Rameshwsar Dayal (supra) and Chandra Mohan (supra)
have been correctly considered by this Court in various
subsequent decisions including in the cases of Satya Narain
(supra), Deepak Aggarwal (supra) and Ashok Kumar
17 Hereinafter, “Shetty Commission”.
84
Sharma (supra). It is further submitted that the law laid down
in Dheeraj Mor (supra) only reiterates the earlier position as
laid down in various judgments of this Court. It is, therefore,
submitted that this position is in hold for decades together and
no interference would be warranted for the same.
E. CONSIDERATION
112. We now propose to deal with the rival submissions.
i. Textual and Contextual Interpretation
113. We have already referred to the principles of plain and
literal interpretation hereinabove.
114. We may also gainfully refer to the following
observations of this Court in the case of Reserve Bank of
India v. Peerless General Finance and Investment Co. Ltd.
and Others18:
“33. Interpretation must depend on the text and the
context. They are the bases of interpretation. One
may well say if the text is the texture, context is what
gives the colour. Neither can be ignored. Both are
important. That interpretation is best which makes
the textual interpretation match the contextual. A
statute is best interpreted when we know why it was
enacted. With this knowledge, the statute must be
read, first as a whole and then section by section,
clause by clause, phrase by phrase and word by
word. If a statute is looked at, in the context of its
enactment, with the glasses of the statute-maker,
18 (1987) 1 SCC 424
85
provided by such context, its scheme, the sections,
clauses, phrases and words may take colour and
appear different than when the statute is looked at
without the glasses provided by the context. With
these glasses we must look at the Act as a whole and
discover what each section, each clause, each phrase
and each word is meant and designed to say as to fit
into the scheme of the entire Act. No part of a statute
and no word of a statute can be construed in
isolation. Statutes have to be construed so that every
word has a place and everything is in its place. It is
by looking at the definition as a whole in the setting
of the entire Act and by reference to what preceded
the enactment and the reasonsfor it that the Court
construed the expression “Prize Chit”
in Srinivasa [(1980) 4 SCC 507 : (1981) 1 SCR 801 :
51 Com Cas 464] and we find no reason to depart
from the Court's construction.”
115. It can thus be seen that the interpretation which
makes the textual interpretation match the contextual one has
to be preferred. A statute is best interpreted when the reason
and purpose for its enactment is ascertained. The statute must
be read first as a whole, and then section by section, clause by
clause, phrase by phrase and word by word. It has been held
that if the statute is looked at in the context of its enactment
with the glasses of the statute-maker, provided by such
context, its scheme, the sections, clauses, phrases and words
may take colour and appear different than when the statute is
looked at without the glasses provided by the context. With
86
these “glasses” we must look at the Act as a whole and
discover what each section, each clause, each phrase and each
word means and what it is designed to say as to fit into the
scheme of the entire Act. No part of a statute and no word of a
statute can be construed in isolation.
116. The law laid down by this Court in Peerless General
Finance and Investment Co. Ltd. (supra) has been followed
in a catena of judgments including in the Constitution Bench
judgment of this Court in the case of Vivek Narayan Sharma
and Others (Demonetisation Case – 5 J) v. Union of India
and Others19, of which one of us (Gavai, J., as he then was)
was a member.
ii. Scheme of Article 233 of the Constitution
117. In that view of the matter, we will have to examine the
entire scheme of Article 233 of the Constitution. We will also
have to give meaning to each and every word used in the said
provision.
118. As already discussed hereinabove, all provisions
relating to appointment of a person to be a district judge and
the posting and promotion thereof are contained in clause (1)
19 (2023) 3 SCC 1
87
of Article 233 of the Constitution. Such appointments have to
be made by the Governor in consultation with the High Court
exercising jurisdiction in relation to such a State. As such, the
contention as sought to be placed on behalf of the
Respondents that clause (1) of Article 233 of the Constitution
deals with promotions and the only manner in which in-service
candidates could be appointed as district judges is by way of
promotion and further that the appointments made under
clause (2) of Article 233 of the Constitution have to be
restricted only to the advocates or a pleader having seven
years’ practice in our view, is not in consonance with the
textual and contextual meaning of Article 233 of the
Constitution.
119. As already discussed hereinabove, clause (1) of Article
233 of the Constitution deals with all the aspects regarding
appointment to be made, promotion and posting to the post of
district judge. Further, as held by the Constitution Bench of
this Court in the case of Kuseswar Saikia (supra), even
appointment on promotion of a subordinate judicial officer
would be traceable to clause (1) of Article 233 of the
Constitution.
88
120. Not only that but as held by this Court in the case of
Rameshwar Dayal (supra), clause (2) of Article 233 of the
Constitution deals with the qualification of a person to be
appointed as district judge. However, it is held by this Court
in the case of Rameshwar Dayal (supra), that clause (2) of
Article 233 does not provide a qualification for a person who is
already in service of the Union or of the State. As clarified in
the case of Chandra Mohan (supra), such a service of the
Union or the State has to be only judicial service.
121. Though clause (2) of Article 233 of the Constitution
begins in a negative manner, if the interpretation as sought to
be given in the judgments of this Court in the cases of Satya
Narain Singh (supra) till Dheeraj Mor (supra) is to be
accepted, it will render the first part of clause (2) of Article 233
of the Constitution redundant.
122. It will be relevant to refer to the following observations
of Constitution Bench of this Court in the case of Union of
India and Another v. Hansoli Devi and Others20:
“9. ……Patanjali Sastri, C.J. in the case of Aswini
Kumar Ghose v. Arabinda Bose [(1952) 2 SCC 237 :
AIR 1952 SC 369 : 1953 SCR 1] had held that it is
not a sound principle of construction to brush aside
20 (2002) 7 SCC 273
89
words in a statute as being inapposite surplusage, if
they can have appropriate application in
circumstances conceivably within the contemplation
of the statute. In Quebec Railway, Light Heat & Power
Co. Ltd. v. Vandry [AIR 1920 PC 181] it had been
observed that the legislature is deemed not to waste
its words or to say anything in vain and a
construction which attributes redundancy to the
legislature will not be accepted except for compelling
reasons……….”
123. We are of the considered view, and particularly in view
of what has been held in the case of Rameshwar Dayal
(supra), that clause (2) of Article 233 of the Constitution
contains provisions with regard to qualification for
appointment of district judge wherein it provides that for
anyone who is not already in service of the Union or of the
State, such a person will be eligible to be appointed as district
judge only if he has been for not less than seven years an
advocate or a pleader. However, if a person is already in
judicial service of the Union or of the State, no such
requirement is provided for.
124. We are also of the considered view that if clause (2) of
Article 233 of the Constitution is not read in the aforesaid
manner, then the words “a person not already in the service of
the Union or of the State” will be rendered redundant and
90
otiose. Such an interpretation of clause (2) of Article 233, in
our view, would not be permissible in law.
125. We are further of the considered view that if the
principle of textual and contextual interpretation is applied to
the provisions of Article 233 of the Constitution, it would
require that the first part of clause (2) of Article 233 of the
Constitution be read as “other than a person already in the
service of the Union or of the State” or “except the person
already in the service of the Union or of the State” so as to avoid
rendering the first part of clause (2) of Article 233 being
rendered redundant and otiose. This interpretation of ours
derives support from the judgment of this Court in the case of
Rameshwar Dayal (supra) wherein the Constitution Bench
clearly held that clause (2) of Article 233 provides qualification
for a candidate who is an advocate whereas it does not provide
qualification for an in-service candidate.
126. A combined reading of clauses (1) and (2) of Article 233
of the Constitution would, therefore, reveal that the
Constitution under clause (2) of Article 233 does not provide
for qualification for an in-service candidate for direct
recruitment.
91
127. Insofar as the reliance placed on the recommendations
of the Shetty Commission and the directions issued in All
India Judges’ Association (supra) by the Respondents are
concerned, it will be relevant to note that the
recommendations were made by the Shetty Commission when
the judgment of this Court in the case of Satya Narain (supra)
was holding the field.
iii. Recommendations of the Shetty Commission
128. It will be relevant to refer to the following
recommendations made in the Shetty Commission’s report:
“11.50 We have given our anxious consideration to
the views and comments expressed by the
respondents to our Questions 8.3 and 8.4.
11.51 The majority of the High Courts and the
Service Associations barring a couple of them are for
giving an opportunity to the Service judges for direct
recruitment as District Judges. Even, some of the
Governments are in favour of such a move. The
reasons given in support of the proposal are that it
would promote efficiency, improve discipline in
judicial service and make the officers to work more
efficiently, diligently and sincerely.
11.52 We are highly impressed by the reasons given
by the High Courts of Allahabad, Bombay, Punjab &
Haryana and All India Judges’ Association. If
meritorious young blood should be introduced in the
mixed cadre, there is no reason why merited serving
judges should be excluded from consideration for
direct recruitment. In such selection the High Court
will have an opportunity to assess the merit of
serving judges as against the merits of the competent
92
advocates. The Bombay High Court has rightly
observed that the High Court in such selection will
have an added advantage of assessing the service
judges on the basis of their work and confidential
records.
11.53 We agree that if an opportunity is afforded, it
would make the Officers to work more efficiently,
diligently and sincerely.
11.54 We do not understand why such an
opportunity should create indiscipline, heart-burn
and jealousy amongst the judicial officers as the
Karnataka High Court has stated. We are equally
unable to appreciate that it may lead to frustration
amongst the Seniors who are not selected for direct
recruitment as indicated by the Delhi High Court.
11.55 It may be noted that we are not recommending
for accelerated promotion to Service judges. The
accelerated promotion to a junior judge may lead to
heart-burn and jealousy in the Service. Though we
have formulated a question on that aspect and
though some of the High Courts and Associations are
in favour of introducing the system of accelerated
promotion, we do not consider it desirable to have
that system since it is likely to lead to bitterness and
jealousy amongst the officers.
11.56 The Commission considers that if an
opportunity for direct recruitment is afforded to in
service judges, it would, to a great extent, remove the
frustration which is presently dogging them. Such an
opportunity would add lustre to their career and
enable them to outshine with their merit, hard work
and sincerity.
11.57 The contention urged by the directly recruited
District Judges that those who have got the
promotional channel should be allowed to make a
move only through that channel does not sound to
reason. In All India Administrative Service, there is
no bar for any person in any service for applying,
subject to the age prescribed. It is a common
experience that many of the successful IAS and IPS
93
candidates initially belonged to one or the other
service.
11.58 The Commission, therefore, considers that it is
reasonable and also necessary to provide eligibility
for service judges for direct recruitment of District
Judges.”
129. It can thus clearly be seen that the Shetty Commission
has recorded that a majority of the High Courts and the Service
Associations were of the view that the service judges should be
given an opportunity for direct recruitment as district judges.
The reasoning given in support of the said recommendation by
the Commission was to promote efficiency, improve discipline
in judicial service and make the officers work more efficiently,
diligently and sincerely. It has been observed that if
meritorious young blood should be introduced in the mixed
cadre, there is no reason as to why merited serving judges
should be excluded from consideration for direct recruitment.
130. It has been further observed that, in such a selection,
the High Court will have an opportunity to assess the merit of
serving judges as against the merits of the competent
advocates. The Shetty Commission also referred to the view of
the Bombay High Court wherein it was stated that the High
Court in such selection will have an added advantage of
94
assessing the service judges on the basis of their work and
confidential records.
131. The argument with regard to indiscipline, heartburn
and jealousy amongst the judicial officers as put in by the
Karnataka High Court has been specifically rejected by the
Shetty Commission. The Commission further found that if
such an opportunity is provided for direct recruitment to the
in-service judges, it would, to a great extent, remove the
frustration which is presently dogging them. It has been
observed that such an opportunity would add lustre to their
career and enable them to outshine with their merit, hard work
and sincerity.
132. The Shetty Commission further observed that when
there is no such restriction in All India Services, there is no
reason as to why the service judges should be forced to enter
to judicial service only through promotional channel and not
be permitted to enter through the direct recruitment. It has
been observed that it was common experience that many of
the successful IAS and IPS candidates initially belonged to one
or the other service. The Shetty Commission, therefore,
recommended amending Article 233 of the Constitution by
95
insertion of clause (3) in it. The Shetty Commission also
recommended an age limit between 35 years and 45 years for
advocates and the serving judges to apply for direct
recruitment to the post of district judge.
133. It is to be noted that the recommendations for
amendment of the Constitution as made by the Shetty
Commission are on the basis of the interpretation of clause (2)
of Article 233 of the Constitution in the judgment of this Court
in the case of Satya Narain Singh (supra). We have already
held that the interpretation as placed in the case of Satya
Narain Singh (supra) and followed subsequently is not a
correct interpretation.
134. We are, therefore, in full agreement with those
observations made by the Shetty Commission, according to
which in order to promote efficiency in the cadre of district
judges, the young talented meritorious judicial officers should
not be denied an opportunity.
iv. Experience of a Judicial Officer
135. As a matter of fact, some of the observations made in
the subsequent three-Judge Bench judgments of this Court in
the cases of Sushma Suri (supra) and Deepak Aggarwal
96
(supra) would support the view that we have taken. In both the
said cases, this Court held that merely because by virtue of
being Government Advocates, the candidates who were in
employment, their rich experience of working as a lawyer for
the Government cannot be ignored. It has further been held
that since they continue to appear for the Government either
on the civil side or on the criminal side, their rich experience
would benefit the judiciary.
136. Rule 49 of the Bar Council of India Rules as originally
framed, reads as follows:
“An advocate shall not be a full-time salaried
employee of any person, Government, firm,
corporation or concern, so long as he continues to
practise and shall, on taking up any such
employment, intimate the fact to the Bar Council on
whose roll his name appears, and shall thereupon
cease to practise as an advocate so long as he
continues in such employment.
Nothing in this rule shall apply to a law officer of the
Central Government or of a State or of any Public
Corporation or body constituted by statute who is
entitled to be enrolled under the rules of his State Bar
Council made under Section 28(2)(d) read with
Section 24(1)(e) of the Act despite his being a full-time
salaried employee.
Law Officer for the purpose of this Rule means a
person who is so designated by the terms of his
appointment and who, by the said terms, is required
to act and/or plead in Courts on behalf of his
employer.”
97
137. As already referred to hereinabove, in Sushma Suri
(supra), the question arose as to whether the word “Advocate”
in Article 233(2) includes a law officer of the Central or State
Government, public corporation or of a body corporate, who is
enrolled as an advocate under exception to Rule 49, who is
practicing before Courts or Tribunal for his employer. A three-
Judge Bench held positively, permitting a Public Prosecutor
and Government Counsel who is on the rolls of the Bar
Council, as entitled to practice under the Act, who would also
answer the description of an Advocate under Article 233(2) of
the Act.
138. The very same question arose in a different context in
Satish Kumar Sharma v. Bar Council of H.P.21. The
appellant therein was appointed as Assistant (Legal) by the
Himachal Pradesh State Electricity Board, who later enrolled
with the State Bar Council at the expense of the Board. After
his appointment, the appellant therein continued in the Board
as a regular employee, was given promotions with change in
designations and was also appearing for the Board in the
Courts. The certificate of enrolment issued in the year 1984
21 (2001) 2 SCC 365
98
was withdrawn by the Bar Council of the State in the year
1996 after due notice and opportunity of hearing. Looking at
the nature of the duties of the appellant who was a full-time
salaried employee, it was found that his work was not mainly
or exclusively to act or plead in Courts and he had to attend
to many more duties, which were quite substantial and
predominant. The appellant therein was also found to be
amenable to disciplinary jurisdiction of his employer and mere
occasional appearances in some Courts on behalf of the
employer could not bring the employer within the meaning of
“Law Officer” under paragraph 3 of Rule 49 was the finding.
The decision in Sushma Suri (supra) was specifically noticed
and distinguished on the ground that in that case the court
was concerned with the definition of the word “Advocate” as
appearing in Article 233(2), which was held to include a law
officer of the Central or State Government who is enrolled as
an advocate falling under exception to Rule 49. It was found
so in paragraph 20 of Satish Kumar Sharma (supra):
“20. As stated in the above para the test indicated is
whether a person is engaged to act or plead in a court
of law as an Advocate and not whether such person
is engaged on terms of salary or payment by
remuneration. The essence is as to what such Law
Officer engaged by the Government does.”
99
139. Satish Kumar Sharma, however, was found to be not
coming within the exception under Rule 49 especially when
there was no rule framed by the State Bar Council entitling
law officers to enrol as an Advocate even if they were full time
employees. The contention that after such a long time his
certificate of enrolment could not have been cancelled was
negated on the finding that even at the threshold, he was not
entitled to be enrolled under Rule 49. On the same premise an
alternative contention that he may be permitted to resign and
retain his enrolment from the date on which the certificate was
issued was also negated. Finding no reason to maintain his
seniority on the rolls of the State Bar Council, on the basis of
an enrolment certificate which at its very issuance was barred,
the claim was rejected.
140. We have to specifically notice that both these decisions
were taken based on Rule 49 as it existed then. The exceptions
provided by paragraphs 2 and 3 have now been removed and
have been substituted with the following:
“That as Supreme Court has struck down the
appearance by Law Officers in Court even on behalf
of their employers the Judgment will operate in the
case of all Law Officers. Even if they were allowed to
appear on behalf of their employers all such Law
Officers who are till now appearing on behalf of their
100
employers shall not be allowed to appear as
advocates. The State Bar Council should also ensure
that those Law Officers who have been allowed to
practice on behalf of their employers will cease to
practice. It is made clear that those Law Officers who
after joining services obtained enrolment by reason of
the enabling provision cannot practice even on behalf
of their employers.
That the Bar Council of India is of the view that if the
said Officer is a whole time employee drawing regular
salary, he will not be entitled to be enrolled as an
advocate. If the terms of employment show that he is
not in full time employment he can be enrolled.”
141. As of now, an employee cannot get enrolled in the rolls
of the State Bar Council without giving up his employment. A
law graduate who is enrolled as an Advocate on taking up
regular employment as full time salaried employee is obliged
to intimate the fact to the Bar Council in which he is enrolled
and would then seize to practice as an Advocate so long as he
continues such employment. Failure to make such intimation
can result in his name being struck off from the Rolls. Reading
Sections 29, 30 and 33 of the Advocates Act, 1961 together
with Rule 49 of the Bar Council of India Rules, an employee,
even if he is in the Rolls of the State Bar Council, as long as
he remains a fully salaried employee, on intimation of the
regular employment would be prohibited from carrying on
practice of law as an Advocate.
101
142. It is further to be noted that Bar Council of India Rules
“Part VI – Rules Governing Advocates” came to be amended by
the Bar Council of India by incorporating Chapter III
“Conditions for Right to Practice” in 2010. In the said newly
added Chapter III, Rule 5 deals with voluntarily suspension of
practice as well as resumption of practice. Under this Rule, an
advocate upon joining the judicial service is expected to
intimate to the concerned State Bar Council that he has joined
the judicial service as a result of which his right to practice
stands voluntarily suspended. Therefore, an advocate who
joins the judicial service on his resignation or retirement is
entitled to resume his practice after the Enrolment Committee
of the concerned State Bar Council orders the resumption of
his practice and returns the certificate to him with the
necessary endorsement.
143. It is thus clear that an advocate who joins the judicial
service only suspends his right to practice and continues to be
on the roll of the State Bar Council.
144. In the case of Rameshwar Dayal (supra), the
Constitution Bench has found that Harbans Singh and P.R.
Sawhney, Respondents No. 3 and 6 therein, were entitled to
102
be appointed as district judges though they were in service of
the State on the date of their appointment. Though, their
names were not found on the roll of the Bar Council, it was
held by the Constitution Bench while interpreting Section
8(2)(a) of the Bar Councils Act, 1926 and Clause 6 of the High
Courts (Punjab) Order, 1947 that the said Respondents did not
cease to be advocates at any time or stage after August 15,
1947 and they were deemed to be continued as advocates of
the Punjab High Court till they were appointed as district
judges.
145. At the cost of repetition, we may state that as per the
provisions contained in the Bar Council of India Rules, an
advocate even upon his selection and joining as a judicial
officer, he/she continues to be on the roll of the Bar Council.
146. As already discussed hereinabove, the experience the
judicial officers gain while working as judges is much greater
than the one, a person gains while working as an advocate.
Apart from that, before commencing their work as judicial
officers, the judges are also required to undergo rigorous
training of at least one year.
103
147. When Government pleaders and Assistant Public
Prosecutor who were still practicing in courts were held to be
competent to apply for direct recruitment to the post of district
judge, can the judicial officers before whom they practice,
considered to be inferior. In fact, there is an anomaly insofar
as an Assistant Public Prosecutor being entitled to participate
in the direct recruitment of district judges, while the judicial
officers before whom they argue case are disabled; as
interpreted in Dheeraj Mor (supra).
148. We, therefore, see no reason to deny an opportunity to
such young talented judicial officers to compete with the
advocates/pleaders having seven years’ practice in the matter
of direct recruitment to the post of district judge.
149. We may also gainfully refer to the case of Leela Dhar
v. State of Rajasthan and Others22, where a three-Judge
Bench of this Court has observed thus:
“4. The object of any process of selection for entry
into a public service is to secure the best and the
most suitable person for the job, avoiding patronage
and favouritism. Selection based on merit, tested
impartially and objectively, is the essential
foundation of any useful and efficient public service.
So, open competitive examination has come to be
22 (1981) 4 SCC 159
104
accepted almost universally as the gateway to public
services….”
150. It can thus be seen that the object of any process of
selection for entry into a public service should be to secure the
best and the most suitable person for the job.
151. The view taken in the case of Leela Dhar (supra) has
been approved by the Constitution Bench in the case of Tej
Prakash Pathak and Others v. Rajasthan High Court and
Others23. This Court, in the said case, observed thus:
“49. The ultimate object of any process of selection
for entry into a public service is to secure the best
and the most suitable person for the job, avoiding
patronage and favouritism. Selection based on merit,
tested impartially and objectively, is the essential
foundation of any useful and efficient public service.
So, open competitive examination has come to be
accepted almost universally as the gateway to public
services. [Lila Dhar v. State of Rajasthan, (1981) 4
SCC 159, para 4 : 1981 SCC (L&S) 588] It is now well
settled that while a written examination assesses a
candidate's knowledge and intellectual ability, an
interview test is valuable to assess a candidate's
overall intellectual and personal qualities.”
23 (2025) 2 SCC 1
105
v. Interpretation of a Constitutional Provision cannot
be pedantic
152. Insofar as the reliance placed by the Respondents on
the judgment of this Court in the case of All India Judges’
Association and Others (supra) is concerned, wherein this
Court observed that the recruitment to the higher judicial
service from amongst the advocates should be 25% and that
the recruitment should be by way of a competitive examination
including both written examination and viva voce, we may
again state that the said observations are in light of the view
taken by this Court in the case of Satya Narain Singh (supra)
and subsequent judgments relying on Satya Narain Singh
(supra).
153. As observed by this Court in a catena of cases, the
interpretation of the constitutional provisions cannot be
pedantic. It has to be organic. A purposeful interpretation has
to be adopted. If the appointment to the district judges cadre
is to be made directly for the purpose of enhancing the
efficiency of district judiciary, any interpretation which
restricts the competition and prohibits the otherwise
meritorious candidates from zone of consideration will have to
be eschewed. The interpretation which advances the purpose
106
of bringing in efficiency in the district judiciary and permitting
a broad-based competition amongst all the eligible candidates
will have to be accepted.
154. We are, therefore, of the considered view that the
judgments of this Court right from Satya Narain Singh
(supra) till Dheeraj Mor (supra) do not lay down a correct
proposition of law.
vi. Eligibility of a Judicial Officer for Direct
Recruitment
155. That leaves us with the question as to whether there
should be no qualifications at all for a member of judicial
service in the service of the State or the Union, for participating
in the selection process for the post of district judge by direct
recruitment.
156. As already discussed hereinabove, all matters
pertaining to appointment of a person to the post of a district
judge, his posting and promotion are covered under clause (1)
of Article 233 of the Constitution. As held by the Constitution
Bench in Kuseswar Saikia (supra), even the appointment as
a district judge by promotion is covered by Article 233(1) of the
Constitution. As such, the State Governments in consultation
107
with the respective High Courts will have to frame rules
providing eligibility for in-service candidates to apply for the
post of district judge which would be filled by direct
recruitment. We are in full agreement with the view taken by
this Court in the case of All India Judges’ Association
(supra) that the recruitment rules in all the States will have to
be uniform as far as possible. Therefore, while maintaining the
proportion of 50:25:25 for the posts of district judges as
provided by the judgment of this Court in All India Judges’
Association (supra) which was reiterated by this Court in the
recent judgment in the case of All India Judges’ Association
and Others v. Union of India and Others24, we propose to
issue directions to the State Governments for framing rules in
consultation with the respective High Courts providing the
eligibility for candidates who are already in judicial service to
apply for the post of district judge to be filled through direct
recruitment process.
157. In that respect, we are of the considered view that for
bringing the advocates and the in-service candidates at the
same level, it will be appropriate that the rules provide that an
24 2025 SCC OnLine SC 1184
108
in-service candidate should be eligible for recruitment to the
post of district judge directly only if he has a combined
experience of seven years as an advocate and a judicial officer.
Similarly, if an advocate is participating in the selection
process and he was a member of judicial service in the past,
then his experience as a judicial officer also cannot be ignored.
His experience as an advocate prior to joining judicial service,
his experience as a judicial officer and his experience as an
advocate after leaving the judicial service will all have to be
taken together. Such a candidate will be eligible only if he has
a combined experience as an advocate and as a judicial officer
for seven years.
158. We are also of the considered view that in order to make
available a level playing field for all the candidates, whether
from in-service or advocates/pleaders, the minimum age as on
the date of application should be 35 years as recommended by
the Shetty Commission.
159. Insofar as the contention regarding the heartburn
amongst the judicial officers in a situation where a junior gets
promoted before the senior is concerned, in our view, the said
contention is without any merit. The in-service candidates,
109
though junior, will have to compete before being selected with
the advocates as also their seniors, who also will be qualified,
and only meritorious candidates would be selected and
appointed. If a person is meritorious and on account of merit
and merit alone gets selected directly as a district judge, there
can be no question of heartburn for those who are not as
meritorious as persons selected.
160. Insofar as the contention that if the in-service
candidates are permitted to participate in the recruitment
process as direct recruit, then the advocates/pleaders would
not be in a position to get selected is concerned, the same is
also without any merit.
161. In the selection process, as observed by the Shetty
Commission, the selection would be on the basis of competitive
examination, including both written examination and viva
voce, and the majority of the marks would be for the written
examination. The advocates/pleaders as well as in-service
candidates would compete together and only the best/most
meritorious amongst them will be selected with no weightage
being conferred on in-service candidates. If such a restriction
is not applicable in All India Services, we see no reason to
110
import such an artificial restriction in the appointment of
district judges by way of direct recruitment.
vii. Break in practice of a prospective candidate
162. Insofar as the contention advanced by the learned
Senior Counsel on behalf of some of the Petitioners that even
if there is a break in the number of years of practice of a
candidate, such break should be ignored and such persons
who are having a total of seven years of practice should be
considered eligible for appointment insofar as the direct
district judges is concerned, we are not inclined to accept the
said contention.
163. We say so because say if a person has practised for five
years and thereafter, he takes a break of ten years and
thereafter practises for two years, there will be a disconnect
with the legal profession. We are, therefore, inclined to hold
that only such persons working either as an advocate/pleader
including Government Pleaders and Public Prosecutors or as
a judicial officer who, on the date of application, have a
continuous experience of either an advocate/pleader or a
judicial officer or a combination thereof shall only be eligible
111
to be considered for appointment as district judges through
the stream of direct recruitment.
viii. Quota for Advocates under Article 233(2)
164. We are also not inclined to accept the contention on
behalf of the respondents that 25% quota of direct recruitment
is reserved only for practising advocates. We are of the view
that if the contention in this respect is accepted, it will amount
to providing a “quota” for the advocates having seven years’
practice. A plain and literal reading of Article 233(2) does not
contemplate such a situation. Therefore, the contention as
canvassed in that regard does not hold water.
ix. Doctrine of stare decisis
165. Before we proceed to answer the questions that are
framed for our consideration, it will be necessary to consider
the submission on behalf of the Respondents that in view of
the doctrine of stare decisis, since the law laid down by this
Court in Satya Narain Singh (supra) has been followed for a
period of over 40 years, the same should not be disturbed.
166. We are, however, unable to accept the said contention.
In this respect, we may gainfully refer to a recent judgment of
112
this Court in the case of Property Owners Association and
Others v. State of Maharashtra and Others25:
“107. We are not inclined to accept this submission.
In Sita Soren v. Union of India (2024) 5 SCC 629, a
Constitution Bench of this Court, speaking through
one of us (DY Chandrachud, J) had occasion to
clarify that the doctrine of stare decisis is not an
inflexible rule of law. This Court may review its earlier
decisions if it believes that there is an error, or the
effect of the decision would harm the interests of the
public or if “it is inconsistent with the legal
philosophy of the Constitution”. In cases involving
the interpretation of the Constitution, this Court
would do so more readily than in other branches of
law because not rectifying a manifest error would be
harmful to the public interest and the polity. The
period of time over which the case has held the field
is not of primary consequence.”
167. We are of the considered view that all the judgments
right from Satya Narain Singh (supra) onwards till Dheeraj
Mor (supra) have incorrectly applied the law laid down by the
Constitution Benches of this Court in Rameshwar Dayal
(supra) and Chandra Mohan (supra). As a result, by applying
the law laid down by this line of judgments, injustice was
meted out to the members of the judicial services, thereby
25 2024 SCC OnLine SC 3122
113
depriving them from participating in the selection process for
the post of district judges by way of direct recruitment.
168. The interpretation placed by the judgments right from
Satya Narain Singh (supra) onwards till Dheeraj Mor
(supra), in our view, is totally inconsistent with the provisions
of clause (2) of Article 233 of the Constitution. Having thus
found that the law laid down by this Court in the
aforementioned cases does not correctly interpret the
provisions of Article 233, if we fail to correct the legal position,
we will be perpetuating the injustice that has been meted out
for decades.
169. It is further to be noted that the judgments of this
Court in Satya Narain Singh (supra) onwards have taken an
incorrect view. Even after noticing the factual position in the
case of Rameshwar Dayal (supra) that two of the persons
selected and whose appointments were challenged were in-
service candidates, the judgment in Satya Narain Singh
(supra) and other judgments held that the post of district judge
to be filled by direct recruitment are not available to in-service
candidates and can be filled in only by the advocates having
requisite number of years of practice. Even in the case of
114
Chandra Mohan (supra), a rule that fell for consideration was
dealing with the direct recruitment of district judges. The said
rule provided for applications for direct recruitment to be made
by Barristers, Advocates, Vakils and Pleaders of more than
seven years’ standing, as well as judicial officers, who were
admittedly from the executive branch of the State. We are,
therefore, of the considered view that even after noticing these
aspects in the Constitution Bench judgments of this Court, the
subsequent judgments holding that filling the post of district
judge by direct recruitment could be filled in only by
advocates/pleaders, are not only inconsistent with the literal
interpretation of Article 233 but also inconsistent with the
factual position as it emanated for consideration of this Court
in the cases of Rameshwar Dayal (supra) and Chandra
Mohan (supra). We, therefore, reject the argument on stare
decisis as raised by the Respondents.
170. In any case, we clarify that what we have held in this
judgment will be applicable only from the date of this judgment
and in no case, any selection process completed, or any
appointment made prior to this judgment would be affected,
except in cases wherein any interim order(s) were passed by
115
the High Courts or this Court. In such cases, the issue would
now be governed by the orders to be passed by the Bench
hearing the matters.
F. CONCLUSION AND DIRECTIONS
171. In view of the answer which we propose to give for
Question No. 4, it may not be necessary to deal with the other
questions, however, since the questions are framed by this
Court, we propose to answer all the questions.
172. In the result, we answer the questions as under:
(i) Judicial Officers who have already completed seven
years in Bar before they were recruited in the
subordinate judicial service would be entitled for being
appointed as a District Judge/Additional District
Judge in the selection process for the post of District
Judges in the direct recruitment process;
(ii) The eligibility for appointment as a District
Judge/Additional District Judge is to be seen at the
time of application;
(iii) Though there is no eligibility prescribed under Article
233(2) for a person already in judicial service of the
116
Union or of the State for being appointed as District
Judge, in order to provide a level playing field, we
direct that a candidate applying as an in-service
candidate should have seven years’ combined
experience as a Judicial Officer and an advocate;
(iv) A person who has been or who is in judicial service
and has a combined experience of seven years or more
as an advocate or a Judicial Officer would be eligible
for being considered and appointed as a District
Judge/Additional District Judge under Article 233 of
the Constitution;
(v) In order to ensure level playing field, we further direct
that the minimum age for being considered and
appointed as a District Judge/Additional District
Judge for both advocates and Judicial Officers would
be 35 years of age as on the date of application.
(vi) It is held that the view taken in the judgments of this
Court right from Satya Narain Singh (supra) till
Dheeraj Mor (supra), which take a view contrary to
117
what has been held hereinabove do not lay down the
correct proposition of law.
173. The reference is answered accordingly.
174. Consequently, all such rules framed by the State
Governments in consultation with the High Courts which are
not in accordance with the aforesaid answers shall stand
quashed and set aside. It is directed that all the State
Governments in consultation with the High Courts shall
frame/amend the rules in accordance with what has been held
by us hereinabove, within a period of three months from today.
175. The Registry is directed to obtain the necessary orders
from Hon’ble the Chief Justice of India, on the administrative
side, to place the matters part of the present batch before an
appropriate bench for deciding the same in the light of what
has been held hereinabove.
176. Before we conclude, we place on record our sincere
appreciation for all the learned Senior Counsel/counsel, so
also their junior counsel, for assisting us in such meticulous
manner. Our task was made easier by the assistance rendered
by them. We also place on record our appreciation for all the
118
learned counsel for strictly adhering to the time-limits, as a
result of which this Court was able to complete the hearing in
the prescribed time period. We would be remiss if we do not
place on record our appreciation for the Nodal Counsel in
collating all the material in an organized manner.
…………..............................CJI
(B.R. GAVAI)
.............................................J
(ARAVIND KUMAR)
.............................................J
(SATISH CHANDRA SHARMA)
.............................................J
(K. VINOD CHANDRAN)
NEW DELHI;
OCTOBER 09, 2025.
119
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL/INHERENT JURISDICTION
CIVIL APPEAL NO. 3947 OF 2020
REJANISH K.V. …APPELLANT(S)
VERSUS
K. DEEPA AND OTHERS …RESPONDENT(S)
WITH
CONNECTED MATTERS
JUDGMENT
M. M. Sundresh, J.
1. I have gone through the detailed analysis made by Hon’ble the Chief Justice of India in rendering the judgment. While I am in absolute agreement with the reasoning and the ultimate conclusion arrived at, along with the directions issued therein, I would only add my views on the interpretation of Article 233 of the Constitution of India, 1950 (hereinafter referred to as “the Constitution”).
Civil Appeal No. 3947 of 2020 & Connected Matters Page 1 of 20
2. We are dealing with a situation where this Court, in its subsequent decisions in Satya Narain Singh v. High Court of Judicature at Allahabad and Others, (1985) 1 SCC 225 and Dheeraj Mor v. High Court of Delhi, (2020) 7 SCC 401 has misconstrued the law as laid down by the larger benches of this Court in Rameshwar Dayal v. The State of Punjab and Others, 1960 SCC OnLine SC 123 and Chandra Mohan v. State of Uttar Pradesh and Others, 1966 SCC OnLine SC
35.
3. Chapter VI of the Constitution deals exclusively with appointment, recruitment and control qua the Subordinate Courts. It is rather significant to note that this Chapter starts from the top with the appointment of district judges, followed by recruitment of persons other than district judges to the judicial service, moves on to control over Subordinate Courts, defines the expression “district judge” and “judicial service” and thereafter ends with the application of provisions of this Chapter to certain classes of Magistrates.
CHAPTER VI SUBORDINATE COURTS Article 233 of the Constitution “233. Appointment of district judges.—(1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be Civil Appeal No. 3947 of 2020 & Connected Matters Page 2 of 20 made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. (2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.” Article 233-A of the Constitution “233-A. Validation of appointments of, and judgments, etc., delivered by, certain district judges.—Notwithstanding any judgment, decree or order of any court, —
(a)(i) no appointment of any person already in the judicial service of a State or of any person who has been for not less than seven years an advocate or a pleader, to be a district judge in that State, and
(ii) no posting, promotion or transfer of any such person as a district judge, made at any time before the commencement of the Constitution (Twentieth Amendment) Act, 1966, otherwise than in accordance with the provisions of article 233 or article 235 shall be deemed to be illegal or void or ever to have become illegal or void by reason only of the fact that such appointment, posting, promotion or transfer was not made in accordance with the said provisions;
(b) no jurisdiction exercised, no judgment, decree, sentence or order passed or made, and no other act or proceeding done or taken, before the commencement of the Constitution (Twentieth Amendment) Act, 1966 by, or before, any person appointed, posted, promoted or transferred as a district judge in any State otherwise than in accordance with the provisions of article 233 or article 235 shall be deemed to be illegal or invalid or ever to have become illegal or invalid by reason only of the fact that such appointment, posting, promotion or transfer was not made in accordance with the said provisions.” Article 234 of the Constitution “234. Recruitment of persons other than district judges to the judicial service.—Appointments of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State.” Civil Appeal No. 3947 of 2020 & Connected Matters Page 3 of 20 Article 235 of the Constitution “235. Control over subordinate courts.—The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.” Article 236 of the Constitution “236. Interpretation.—In this Chapter—
(a) the expression “district judge” includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge;
(b) the expression “judicial service” means a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge.” Article 237 of the Constitution “237. Application of the provisions of this Chapter to certain class or classes of magistrates.—The Governor may by public notification direct that the foregoing provisions of this Chapter and any rules made thereunder shall with effect from such date as may be fixed by him in that behalf apply in relation to any class or classes of magistrates in the State as they apply in relation to persons appointed to the judicial service of the State subject to such exceptions and modifications as may be specified in the notification.”
4. As per Article 233 and Article 234 of the Constitution, while an appointment to the post of a district judge, and to posts in the judicial service other than that of a district judge shall be made by the Governor Civil Appeal No. 3947 of 2020 & Connected Matters Page 4 of 20 of the State, the consultation is only with the High Court for the former, while it additionally extends to the State Public Service Commission for the latter. The exclusion of the State Public Service Commission in the process of appointment to the post of a district judge shows that added importance is given to the said post.
5. Article 233 of the Constitution deals with two modes of appointment to the post of a district judge. Clause (1) of Article 233 of the Constitution speaks of appointments to be made to the post of a district judge. These appointments are to be made either by way of a promotion or through direct recruitment.
6. The procedure for appointment, posting and promotion to the post of a district judge, qua a person in the judicial service, is one and the same with respect to the appointing authority, namely, the Governor, and the same is to be done in consultation with the High Court. Promotion is obviously meant only for a person in the judicial service. One has to be promoted first by the Governor, in consultation with the High Court, and thereafter appointed as a district judge. Therefore, promotion is a precursor to appointment as a district judge qua a person in the judicial service. Such an appointment is nothing but a resultant consequence. Civil Appeal No. 3947 of 2020 & Connected Matters Page 5 of 20 To make this position clear, one has to read Article 233(1) of the Constitution with respect to appointments as “appointments of persons to be district judges”. Similarly, for posting, it has to be read as “posting of district judges” and promotions of persons in the judicial service as “promotion and appointment as district judges.” One cannot ignore the word “persons” which would only mean persons from two modes of appointment. Therefore, Article 233(1) of the Constitution deals with both, the modes and the sources of appointment.
7. Article 233(2) of the Constitution is a continuation of Article 233(1) of the Constitution. This provision, in fact, reiterates the fact that an appointment by way of direct recruitment can be done from two sources, namely, ‘judicial service’ and ‘an advocate or a pleader’. While doing so, it declares the eligibility criteria only for the latter. Hence, it is made abundantly clear that no such eligibility criteria are fixed for a person in the judicial service. Clause (1) along with Clause (2) of Article 233 of the Constitution, is a complete code by itself, and therefore does not leave any room for interpretation otherwise.
Civil Appeal No. 3947 of 2020 & Connected Matters Page 6 of 20
DOCTRINE OF SEPARATION OF POWERS VIS-À-VIS INDEPENDENCE OF THE JUDICIARY
8. Montesquieu’s words of wisdom in ‘The Spirit of Laws’ become relevant in this context:
“There can be no liberty... there is no liberty if the powers of judging are not separated from the legislative and executive... there would be an end to everything if the same man or the same body... were to exercise those three powers.” (emphasis supplied)
9. Article 50 of the Constitution forms the basis for the applicability of the doctrine of separation of powers. It deals with the separation of the judiciary from the executive, and imposes an obligation on the State to take steps to separate the judiciary from the executive in the public services of the State.
Article 50 of the Constitution “50. Separation of judiciary from executive.—The State shall take steps to separate the judiciary from the executive in the public services of the State.” Hence, the concept of ‘independence of the judiciary’ finds both, its genesis and sustenance, in the doctrine of separation of powers. Dr. Rajendra Prasad, President of the Constituent Assembly and later President of India, in his speech to the Constituent Assembly of India, preceding the motion to adopt the Constitution, in Constituent Assembly Debates, Volume XI (debate of 26-11-1949), stated thus: Civil Appeal No. 3947 of 2020 & Connected Matters Page 7 of 20
“We have provided in the Constitution for a judiciary which will be independent. It is difficult to suggest anything more to make the Supreme Court and the High Courts independent of the influence of the executive. There is an attempt made in the Constitution to make even the lower judiciary independent of any outside or extraneous influence.” (emphasis supplied) It is such independence that allows each and every judge to make decisions, uninfluenced by any factor. Thus, the independence of the judiciary and the separation of powers between the three organs of the State, which form an integral part of the basic structure doctrine, ensure a vibrant and flourishing institution.
10.Under Article 233 of the Constitution, the primacy given to the High Courts, insofar as the mandate for its consultation in appointments to the post of a district judge, along with the control exercised by it over Subordinate Courts under Article 235 of the Constitution, is a classic exhibition of the doctrine of separation of powers.
11.Judging is an independent sovereign function. The function of the presiding officer of a Court is purely judicial, and not even quasi- judicial. For instance, in a criminal case, the prosecuting agency would invariably be either the State, the Union or their instrumentalities, who become mere litigants before the Court, though the presiding officer’s post may be connected to them only for administrative purposes. No Civil Appeal No. 3947 of 2020 & Connected Matters Page 8 of 20 employee can be an adjudicator of an employer. To say that such a judge is their employee, and therefore debarred from competing for the vacancies earmarked to be filled through direct recruitment, would be contrary to the principle of independence of the judiciary.
12.In the context of the aforesaid discussion, the views of M.P. Singh in his article titled, ‘Securing the Independence of the Judiciary – The Indian Experience’ published in the Indiana International & Comparative Law Review, IU Robert H. McKinney School of Law, gain significance:
“…Although the nature of the Indian Constitution-whether it is federal or unitary-is doubtful, basically it provides for a federal structure of government consisting of the Union and the States. The Union and the States have their distinct powers and organs of governance given in the constitution. While the Union and States have separate legislatures and executives, they do not have a separate judiciary. The judiciary has a single pyramidal structure with the lower or subordinate courts at the bottom, the High Courts in the middle, and the Supreme Court at the top. For funding and some administrative purposes, the subordinate courts are subject to regulation by the respective States, but they are basically under the supervision of the High Courts….The unitary character of the judiciary is not an accident but rather a conscious and deliberate act of the constitution makers for whom a single integrated judiciary and uniformity of law were essential for the maintenance of the unity of the country and of uniform standards of judicial behavior and independence….” (emphasis supplied)
13.Judicial service is a distinct service by itself, owing allegiance to the judiciary alone. Therefore, it is kept away from the hands of the other two organs, except to a limited extent. Any attempt to dilute such judicial Civil Appeal No. 3947 of 2020 & Connected Matters Page 9 of 20 independence, by giving a rigid interpretation, would be against the constitutional ethos. The said view gets fortified by the judgment of this Court in the case of State of Bihar and Another v. Bal Mukund Sah and Others, (2000) 4 SCC 640 “32. It is true, as submitted by learned Senior Counsel, Shri Dwivedi for the appellant State that under Article 16(4) the State is enabled to provide for reservations in services. But so far as “Judicial Service” is concerned, such reservation can be made by the Governor, in exercise of his rule- making power only after consultation with the High Court. The enactment of any statutory provision dehors consultation with the High Court for regulating the recruitment to the District Judiciary and to the Subordinate Judiciary will clearly fly in the face of the complete scheme of recruitment and appointment to the Subordinate Judiciary and the exclusive field earmarked in connection with such appointments by Articles 233 and 234. It is not as if that the High Courts being constitutional functionaries may be oblivious of the need for a scheme of reservation if necessary in appropriate cases by resorting to the enabling provision under Article 16(4). The High Courts can get consulted by the Governor for framing appropriate rules regarding reservation for governing recruitment under Articles 233 and 234. But so long as it is not done, the Legislature cannot, by an indirect method, completely bypassing the High Court and exercising its legislative power, circumvent and cut across the very scheme of recruitment and appointment to the District Judiciary as envisaged by the makers of the Constitution. Such an exercise, apart from being totally forbidden by the constitutional scheme, will also fall foul on the concept relating to “separation of powers between the Legislature, the Executive and the Judiciary” as well as the fundamental concept of an “independent Judiciary”. Both these concepts are now elevated to the level of basic structure of the Constitution and are the very heart of the constitutional scheme.
33. In the case of Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225] a twelve-Member Constitution Bench of this Court had occasion to consider this question regarding the basic structure of the Constitution which, according to the Court, could not be tinkered with by Parliament in exercise of its amending power under Article 368 of the Constitution. Sikri, C.J., in para 247 of the Report referred with approval the decision of the Judicial Committee in Liyanage case Civil Appeal No. 3947 of 2020 & Connected Matters Page 10 of 20 [Liyanage v. R., (1967) 1 AC 259 : (1966) 1 All ER 650 : (1966) 2 WLR 682 (PC)] for culling out the implied limitations on the amending power of the competent Legislature like Parliament of Ceylon with which that case was concerned. The relevant observations are found in SCC paras 253 to 255 of the Report at pp. 357 and 358, which read as under:
“253. The case, however, furnishes another instance where implied limitations were inferred. After referring to the provisions dealing with ‘Judicature’ and the Judges, the Board observed:
‘These provisions manifest an intention to secure in the Judiciary a freedom from political, legislative and executive control. They are wholly appropriate in a Constitution which intends that judicial power shall be vested only in the Judicature. They would be inappropriate in a Constitution by which it was intended that judicial power should be shared by the Executive or the Legislature. The Constitution's silence as to the vesting of judicial power is consistent with its remaining, where it had lain for more than a century, in the hands of the Judicature. It is not consistent with any intention that henceforth it should pass to or be shared by, the Executive or the Legislature.’
254. The Judicial Committee was of the view that there ‘exists a separate power in the Judicature which under the Constitution as it stands cannot be usurped or infringed by the Executive or the Legislature’. The Judicial Committee cut down the plain words of Section 29(1) thus:
‘Section 29(1) of the Constitution says.—“Subject to the provisions of this Order Parliament shall have power to make laws for the peace, order and good government of the Island.” These words have habitually been construed in their fullest scope. Section 29(4) provides that Parliament may amend the Constitution on a two-thirds majority with a certificate of the Speaker. Their Lordships however cannot read the words of Section 29(1) as entitling Parliament to pass legislation which usurps the judicial power of the Judicature — e.g., by passing an Act of attainder against some person or instructing a Judge to bring in a verdict of guilty against someone who is being tried — if in law such usurpation would otherwise be contrary to the Constitution.’ (p. 289)
255. In conclusion the Judicial Committee held that there was interference with the functions of the Judiciary and it was not only the likely but the intended effect of the impugned enactments, and that was fatal to their validity.” Civil Appeal No. 3947 of 2020 & Connected Matters Page 11 of 20 The ultimate conclusion to which Chief Justice Sikri reached are found in paras 292 to 294 at p. 366 of the Report which read as under:
“292. The learned Attorney General said that every provision of the Constitution is essential; otherwise it would not have been put in the Constitution. This is true. But this does not place every provision of the Constitution in the same position. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same. The basic structure may be said to consist of the following features:
(1) Supremacy of the Constitution;
(2) Republican and democratic form of Government;
(3) Secular character of the Constitution;
(4) Separation of powers between the Legislature, the Executive and the Judiciary;
(5) Federal character of the Constitution.
293. The above structure is built on the basic foundation, i.e., the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed.
294. The above foundation and the above basic features are easily discernible not only from the Preamble but the whole scheme of the Constitution, which I have already discussed.” The other learned Judges constituting the Constitution Bench had nothing inconsistent to say in this connection. Thus separation of powers between the Legislature, the Executive and the Judiciary is the basic feature of the Constitution.
34. It has also to be kept in view that judicial independence is the very essence and basic structure of the Constitution. We may also usefully refer to the latest decision of the Constitution Bench of this Court in Registrar (Admn.), High Court of Orissa v. Sisir Kanta Satapathy [(1999) 7 SCC 725 : 1999 SCC (L&S) 1373] wherein K. Venkataswami, J., speaking for the Constitution Bench, made the following pertinent observations in the very first two paras regarding Articles 233 to 235 of the Constitution of India: (SCC Headnote) “An independent Judiciary is one of the basic features of the Constitution of the Republic. Indian Constitution has zealously Civil Appeal No. 3947 of 2020 & Connected Matters Page 12 of 20 guarded independence of Judiciary. Independence of Judiciary is doubtless a basic structure of the Constitution but the said concept of independence has to be confined within the four corners of the Constitution and cannot go beyond the Constitution.” The Constitution Bench in the aforesaid decision also relied upon the observations of this Court in All India Judges' Assn. [(1993) 4 SCC 288 : 1994 SCC (L&S) 148 : (1993) 25 ATC 818 : AIR 1993 SC 2493] wherein on the topic of regulating the service conditions of the Judiciary as permitted by Article 235 read with Article 309, it had been observed as under: (SCC p. 297, para 10) “[T]he mere fact that Article 309 gives power to the Executive and the Legislature to prescribe the service conditions of the Judiciary, does not mean that the Judiciary should have no say in the matter. It would be against the spirit of the Constitution to deny any role to the Judiciary in that behalf, for theoretically it would not be impossible for the Executive or the Legislature to turn and twist the tail of the Judiciary by using the said power. Such a consequence would be against one of the seminal mandates of the Constitution, namely, to maintain the independence of the Judiciary.” In view of this settled legal position, therefore, even while operating in the permissible field of regulating other conditions of service of already- recruited judicial officers by exercising power under Article 309, the authorities concerned have to keep in view the opinion of the High Court of the State concerned and the same cannot be whisked away.
35. In order to fructify this constitutional intention of preserving the independence of the Judiciary and for fructifying this basic requirement, the process of recruitment and appointment to the District Judiciary with which we are concerned in the present case, is insulated from outside legislative interference by the Constitution- makers by enacting a complete code for that purpose, as laid down by Articles 233 and 234. Consultation with the High Court is, therefore, an inevitable essential feature of the exercise contemplated under these two articles. If any outside independent interference was envisaged by them, nothing prevented the Founding Fathers from making Articles 233 and 234 subject to the law enacted by the Legislature of States or Parliament as was done in the case of other articles, as seen earlier….” (emphasis supplied) Civil Appeal No. 3947 of 2020 & Connected Matters Page 13 of 20 PRINCIPLE OF CONSTITUTIONAL SILENCE
14.While taking note of the doctrine of separation of powers and independence of the judiciary, coupled with the maintenance and enhancement of the quality of judging which forms part of the basic structure doctrine, a decision was consciously taken by the makers of the Constitution to fix the eligibility criteria only for the category of ‘an advocate or a pleader.’ At this juncture, the concept of ‘constitutional silence’ comes into play as the makers of the Constitution deliberately left certain areas open-ended, keeping in mind the evolving needs of the society. This concept is invoked to give effect to the essence of the Constitution. The spirit of this principle has been captured by Thomas Carlyle, a Scottish Philosopher and Historian, when he famously stated:
“Under all speech and writing that is good for anything, there lies a silence that is better....” (emphasis supplied) This Court had the occasion to deal with the aforesaid principle in the case of Bhanumati and Others v. State of U.P. and Others, (2010) 12 SCC 1.
“49. Apart from the aforesaid reasons, the arguments by the appellants cannot be accepted in view of a very well-known constitutional doctrine, namely, the constitutional doctrine of silence. Michael Foley Civil Appeal No. 3947 of 2020 & Connected Matters Page 14 of 20 in his treatise on The Silence of Constitutions (Routledge, London and New York) has argued that in a Constitution “abeyances are valuable, therefore, not in spite of their obscurity but because of it. They are significant for the attitudes and approaches to the Constitution that they evoke, rather than the content or substance of their strictures”. (P. 10)
50. The learned author elaborated this concept further by saying, “Despite the absence of any documentary or material form, these abeyances are real and are an integral part of any Constitution. What remains unwritten and indeterminate can be just as much responsible for the operational character and restraining quality of a Constitution as its more tangible and codified components.” (P. 82)
51. Many issues in our constitutional jurisprudence evolved out of this doctrine of silence. The basic structure doctrine vis-à-vis Article 368 of the Constitution emerged out of this concept of silence in the Constitution. A Constitution which professes to be democratic and republican in character and which brings about a revolutionary change by the Seventy-third Constitutional Amendment by making detailed provision for democratic decentralisation and self-
government on the principle of grass-root democracy cannot be interpreted to exclude the provision of no-confidence motion in respect of the office of the Chairperson of the panchayat just because of its silence on that aspect.” (emphasis supplied)
15.One must appreciate the constitutional silence on the eligibility criteria qua a person in the judicial service, which has accordingly been left to the discretion and wisdom of the High Court and the Governor of the State, as per Articles 233 and 235 of the Constitution. Therefore, such an omission was done consciously, as a person in the judicial service has already been recruited by way of an appointment by the orders of the Governor, in consultation with the High Court and the State Public Service Commission.
Civil Appeal No. 3947 of 2020 & Connected Matters Page 15 of 20
16.As discussed, Article 233 of the Constitution does not place any fetters on the power of the appointing authority qua the fixation of eligibility criteria for persons in the judicial service, as circumstances might evolve over time, and the wisdom of the Constitutional Courts would take care of it.
ELIGIBILITY VIS-À-VIS QUALIFICATION TO THE POST OF A DISTRICT JUDGE
17.Provisions in the Constitution use the words “qualification” and “eligibility” interchangeably. Examples of such provisions are Article 58 of the Constitution, which provides for the qualifications for election as President, Article 66 of the Constitution, which provides for election of Vice-President and Article 84 of the Constitution, which provides for qualification for membership of the Parliament.
18.The word “eligible” used in Article 233(2) of the Constitution must be read as “qualified.” Thus, a person who has been an advocate or a pleader for not less than seven years, along with the recommendation of the High Court is one qualification, and a person in the judicial service is the other qualification. Both of these qualifications are nothing but mere gateways for being appointed to the post of a district judge, facilitating a threshold for entry. However, there is no bar on the High Civil Appeal No. 3947 of 2020 & Connected Matters Page 16 of 20 Court to fix the qualification, qua persons in the judicial service, with the approval of the Governor. These qualifications are meant only for consideration for appointment, subject to the successful completion of the recruitment process.
19.Accordingly, we are inclined to hold that there is no bar on persons in the judicial service from competing for the vacancies intended to be filled through direct recruitment. Any interpretation contrary to the aforesaid view, would amount to a reservation in favour of ‘an advocate or a pleader,’ which is not only not contemplated under the Constitution, but also violates the very spirit enshrined thereunder.
20.Another lens through which the aforesaid proposition can be viewed is Article 233-A of the Constitution, which provides for the validation of appointments made at any time before the commencement of the Constitution (Twentieth Amendment Act), 1966. Clause (a)(i) of Article 233-A of the Constitution encompasses the validation of appointments from both sources, i.e., a person already in the judicial service and a person who has been an advocate or a pleader for 7 years or more. The express reference to both the sources, within the same clause, indicates the constitutional intent to place the persons in the judicial service at par Civil Appeal No. 3947 of 2020 & Connected Matters Page 17 of 20 with those from the Bar and thus, they are fully entitled to participate in the direct recruitment process. The use of the phrase “any such person” in Clause (a)(ii) of Article 233-A of the Constitution, which deals with the validation of posting, promotion, or transfer, further strengthens their entitlement to such participation.
CONCLUSION
21.While interpreting a constitutional provision, a Court of law must be conscious not to violate the basic structure of the Constitution, and is duty-bound to give it a vibrant and organic interpretation. Article 14 of the Constitution forms an integral part of the basic structure. Though it provides for equality before the law, it allows for a reasonable classification, based upon an intelligible differentia, having a rational nexus to the object sought to be achieved. Therefore, construing Article 233(2) of the Constitution to be a provision meant only for the category of ‘an advocate or a pleader’ would certainly be violative of Article 14 of the Constitution, for the purpose of its interpretation. In other words, a contra view would amount to creation of a quota for ‘an advocate or a pleader.’ An absolute bar on persons in the judicial service would certainly prevent meritorious candidates from competing for the Civil Appeal No. 3947 of 2020 & Connected Matters Page 18 of 20 vacancies earmarked for direct recruitment, which would be an affront to the constitutional spirit.
22.A vibrant and qualitative judiciary fosters greater trust in the institution. Thus, it is vital to build a strong foundation. Maintaining and enhancing the quality at the bottom of the judicial pyramid would strengthen the faith of the public in the subordinate judiciary, which in turn would reduce the filing of appeals before the High Courts and the Supreme Court, and therefore considerably reduce the overall pendency.
23.Building a strong foundation and ensuring that the base is of pristine quality is only possible when the best talent is attracted. Letting go of emerging talent, by not identifying and nurturing them at the earliest, would lead to mediocrity as against excellence, which would weaken the foundation and undermine the entire judicial structure. It is obvious that greater competition would result in better quality. Excluding a group of persons from competing for a post, which is meant to serve the public, would certainly be unconstitutional, especially when the Constitution itself facilitates such participation. It is my fervent hope that our judgement empowers the institution to emerge stronger and maintain the Civil Appeal No. 3947 of 2020 & Connected Matters Page 19 of 20 highest standards of justice, as it is the interest of the institution that must prevail above all.
...………………………. J.
(M. M. SUNDRESH) NEW DELHI;
OCTOBER 09, 2025 Civil Appeal No. 3947 of 2020 & Connected Matters Page 20 of 20