Dheeraj Mor v. High Court of Delhi (AIR 2020 SC 1084)
Updated: Dec 29, 2020
Dheeraj Mor v. High Court of Delhi
AIR 2020 SC 1084
Supreme Court of India
Full bench - Hon’ble Justice Arun Mishra , Hon’ble Justice Vineet Saran and Hon’ble Justice S. Ravindra Bhat
ALSO KNOWN AS
Eligibility for District Judges by direct recruitment Case
POINT OF CONSIDERATION
Interpretation of Article 233 of the Constitution of India as to the eligibility of members of the subordinate judicial service for appointment as District Judge
The petitioners who are in judicial service, have claimed that in case before joining judicial service a candidate has completed 7 years of practice as an advocate, he/she shall be eligible to stake claim as against the direct recruitment quota from the Bar notwithstanding that on the date of application/appointment, he or she is in judicial service of the Union or State.
Another category is that of the persons having completed only 7 years of service as judicial service. They contend that experience as a judge be treated at par with the Bar service, and they should be permitted to stake their claim.
The third category is hybrid, consisting of candidates who have completed 7 years by combining the experience serving as a judicial officer and as advocate. They claim to be eligible to stake their claim against the above quota.
The central argument advanced is that Article 233(2) provides two sources of recruitment; one is from judicial service, and the other is from Bar. Thus, a person in judicial service with experience of 7 years practice at the Bar, before joining service (or combined with service as a judicial officer), can stake a claim under Article 233(2) as against the posts reserved for those having experience of 7 years as an advocate/pleader.
ISSUES RAISED & RATIO
Whether the interpretation of Article 233 of the Constitution of India as to the eligibility of members of the subordinate judicial service for appointment as District Judge as against the quota reserved for the Bar by way of direct recruitment is ultra vires the Constitution of India?
A close reading of Article 233, other provisions of the Constitution, and the judgments discussed discloses the following:
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 )
While so appointing the Governor is bound to consult the High Court (Article 233 : Chandra Mohan (supra) and Chandramouleshwar Prasad v Patna High Court 1970 (2) SCR 666);
Article 233 (1) cannot be construed as a source of appointment; it merely delineates as to who is the appointing authority;
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. (State of Assam v Ranga Mahammad 1967 (1) SCR 454);
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’ practise could be appointed as a District Judge, under Article 233 (2)
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 a category of candidates.
As regards participation in the selection process, 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. To that extent, Vijay Kumar Mishra (supra) is hereby overruled.
It is held that under Article 233, a judicial officer, regardless of her or his previous experience as an Advocate with seven years’ practice cannot apply, and compete for appointment to any vacancy in the post of the stipulated qualifications subsequent District Judge; her or his chance to occupy that post would be through promotion, in accordance with Rules framed under Article 234 and proviso to Article 309 of the Constitution of India.
IMPORTANT CASES REFERRED
Rameshwar Dayal v. State of Punjab & Ors., AIR 1961 SC 816
Chandra Mohan v. State of Uttar Pradesh & Ors., (1967) 1 SCR 77
Satya Narain Singh v. High Court of Judicature at Allahabad & Ors., (1985) 1 SCC 225
High Court of Punjab & Haryana v. State of Haryana, (1975) 1 SCC 843
Vijay Kumar Mishra & Anr. v. High Court of Judicature at Patna & Ors., (2016) 9 SCC 313
All India Judges' Association v. Union of India, (2010) 15 SCC 170
Punjab & Haryana High Court v. State of Punjab, (2018) SCC OnLine SC 1728
Rameshwar Dayal v. State of U.P., AIR 1961 SC 816
All India Judges Association and Ors. v. Union of India and Ors., (2002) 4 SCC 247
U.P . Public Service Commission v Alpana 1994 (2) SCC 723
The author is a law graduate from the University School of Law & Legal Studies, GGS IP University, New Delhi.