# DHEERAJ MOR v. HON'BLE HIGH COURT OF DELHI

- **Citation:** [2020] 2 S.C.R. 161
- **Court:** Supreme Court of India
- **Decided:** 2020-02-19
- **Case number:** Civil Appeal No. 1698 of 2020
- **Bench:** Arun Mishra, Vineet Saran, S. Ravindra Bhat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dheeraj-mor-v-hon-ble-high-court-of-delhi-34339
- **Pages:** 85

## Headnote

Constitution of India - Arts.233-235 - Interpretation of
Art.233 - Eligibility of members of subordinate judicial service for
appointment as District Judge against the quota reserved for bar
members by way of direct recruitment - Petitioners who are in judicial
service inter alia claimed that there are two sources of recruitment
u/Art.233(2)- from judicial service and from the bar; thus, a person
in judicial service with 7 years practice at the bar before joining
service (or combined with service as a judicial officer), can compete
with members of the bar (with 7 or more years' practice), for direct
recruitment, in the quota earmarked to be filled by such advocates
- Matter referred by Division Bench of Supreme Court - Answering
the reference, Held: Per Arun Mishra and Vineet Saran, JJ. -
Members in the judicial service of the State can be appointed as
District Judges by way of promotion/limited competitive examination
- For the purpose of Art.232(2), an advocate continuing in practice
for not less than 7 years as on the cut-off date and at the time of
appointment as District Judge can be appointed as District Judge
by way of direct recruitment if he is not already in the judicial service
of the Union or a State - Members of judicial service having 7
years' of practice before joining service (or combined with service
as a judicial officer) are not eligible to apply for direct recruitment
as a District Judge - Rules framed by 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, are not ultra vires and are in conformity with Arts.14,
16 & 233 - In cases where in-service incumbents were appointed
by way of direct recruitment from bar (in view of various interim
orders passed by Supreme Court in Dheeraj Mor and other cases,
though later vacated), in view of dismissal of the writ petitions filed
 [2020] 2 S.C.R. 161
161
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by judicial officers, they cannot continue as District Judges - To
be reverted to their original post - In case their right in channel for
promotion had already ripened, and their juniors were promoted,
High Court to consider their promotion in accordance with prevailing
rules - Per S. Ravindra Bhat, J. (Supplementing) - Under Art.233,
a judicial officer, regardless of her or his previous experience as
an Advocate with seven years' practice can not apply, and compete
for appointment to any vacancy in the post of District Judge - Her/
his chance to occupy that post would be through promotion, in
accordance with Rules framed u/Art.234 and proviso to Art.309 -
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
Arts. 233-235, and the rules are valid - Service Law - Higher
Judicial Service - Interpretation of Statutes.
Constitution of India - Arts. 233(1), 234, 235 - Held: Per
Arun Mishra and Vineet Saran, JJ. - Governor of a State is the
authority for the purpose of appointment, promotion, posting and
transfer - Eligibility is governed by Rules framed u/Arts. 234 &
235 - Per S. Ravindra Bhat, J. (Supplementing) - 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 -
While so appointing, the Governor is bound to consult the High
Court - Art. 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 Art.235, to exercise
control and superintendence over the conditions of service of such
District Judges - Service Law - Higher Judicial Service.
Constitution of I

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DHEERAJ MOR
v.
HON'BLE HIGH COURT OF DELHI
(Civil Appeal No. 1698 of 2020)
FEBRUARY 19, 2020
[ARUN MISHRA, VINEET SARAN AND
S. RAVINDRA BHAT, JJ.]
Constitution of India - Arts.233-235 - Interpretation of
Art.233 - Eligibility of members of subordinate judicial service for
appointment as District Judge against the quota reserved for bar
members by way of direct recruitment - Petitioners who are in judicial
service inter alia claimed that there are two sources of recruitment
u/Art.233(2)- from judicial service and from the bar; thus, a person
in judicial service with 7 years practice at the bar before joining
service (or combined with service as a judicial officer), can compete
with members of the bar (with 7 or more years' practice), for direct
recruitment, in the quota earmarked to be filled by such advocates
- Matter referred by Division Bench of Supreme Court - Answering
the reference, Held: Per Arun Mishra and Vineet Saran, JJ. -
Members in the judicial service of the State can be appointed as
District Judges by way of promotion/limited competitive examination
- For the purpose of Art.232(2), an advocate continuing in practice
for not less than 7 years as on the cut-off date and at the time of
appointment as District Judge can be appointed as District Judge
by way of direct recruitment if he is not already in the judicial service
of the Union or a State - Members of judicial service having 7
years' of practice before joining service (or combined with service
as a judicial officer) are not eligible to apply for direct recruitment
as a District Judge - Rules framed by 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, are not ultra vires and are in conformity with Arts.14,
16 & 233 - In cases where in-service incumbents were appointed
by way of direct recruitment from bar (in view of various interim
orders passed by Supreme Court in Dheeraj Mor and other cases,
though later vacated), in view of dismissal of the writ petitions filed
 [2020] 2 S.C.R. 161
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by judicial officers, they cannot continue as District Judges - To
be reverted to their original post - In case their right in channel for
promotion had already ripened, and their juniors were promoted,
High Court to consider their promotion in accordance with prevailing
rules - Per S. Ravindra Bhat, J. (Supplementing) - Under Art.233,
a judicial officer, regardless of her or his previous experience as
an Advocate with seven years' practice can not apply, and compete
for appointment to any vacancy in the post of District Judge - Her/
his chance to occupy that post would be through promotion, in
accordance with Rules framed u/Art.234 and proviso to Art.309 -
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
Arts. 233-235, and the rules are valid - Service Law - Higher
Judicial Service - Interpretation of Statutes.
Constitution of India - Arts. 233(1), 234, 235 - Held: Per
Arun Mishra and Vineet Saran, JJ. - Governor of a State is the
authority for the purpose of appointment, promotion, posting and
transfer - Eligibility is governed by Rules framed u/Arts. 234 &
235 - Per S. Ravindra Bhat, J. (Supplementing) - 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 -
While so appointing, the Governor is bound to consult the High
Court - Art. 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 Art.235, to exercise
control and superintendence over the conditions of service of such
District Judges - Service Law - Higher Judicial Service.
Constitution of India - Art. 233(2) - Eligibility of judicial
officers to compete as against the post of District Judge by way of
direct recruitment - Participation in selection process vis-a-vis
appointment - Plea of petitioners placing reliance on Vijay Kumar
Mishra & Anr. v. High Court of Judicature at Patna & Ors. reported as
[2016] 3 SCR 806 in which it was held that the bar prescribed
u/Art.233(2) prohibits only the appointment of persons in service
of Central/State Govt. and not their participation in the recruitment
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process and in case they are selected, they can resign and join the
post - Held: Per Arun Mishra and Vineet Saran, JJ. - Vijay Kumar
Mishra providing eligibility of judicial officer to compete as against
the post of District Judge by way of direct recruitment, does not lay
down the law correctly - Overruled - Per S. Ravindra Bhat, J.
(Supplementing) - Vijay Kumar Mishra, as far as it makes a
distinction between consideration of a candidate's eligibility at the
stage of selection, and eligibility reckonable at the time of
appointment, is incorrect - Eligibility of any candidate is to be
reckoned not from the date of his or her selection, but in terms of
the rules, or the advertisement for the post - Service Law - Higher
Judicial Service.
Service Law - Higher Judicial Service - Recruitment to the
posts of District Judges from two sources- in-service and from the
Bar - Claim by candidates from judicial service as against the posts
reserved for direct recruitment from the Bar - Held: Per Arun Mishra
and Vineet Saran, JJ. - Makers of the Constitution visualised and
the law administered in the country for last seven decades reveals
that the aforesaid modes of recruitment and two separate sources
are recognised - No room to entertain submission of discrimination
based on Arts.14 & 16 - Art.233(2) starts with the negative "not,"
which disentitles the claim of judicial officers against the post
reserved for practicing advocates/pleaders - Per S. Ravindra Bhat,
J. (Supplementing) - 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 - Constitution
of India - Arts.14, 16 & 233.
Constitution of India - Arts. 124, 217, 233(2) - Eligibility of
judicial officers to compete as against the post of District Judge by
way of direct recruitment - Plea that practice as an advocate and
service as a judicial officer for 10 years is to be treated at par as
per explanation added to Arts. 124 & 217 - Held: In Rameshwar
Dayal, this question has been considered and it was held that
Art.233(2) could not be interpreted in view of the explanations added
to Arts. 124 & 217.
Words & Phrases - "appointment", "advocates", "pleaders"
- Meaning of - Discussed - Constitution of India - Art.233.
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Answering the reference, the Court
PER ARUN MISHRA, J. [FOR HIMSELF AND VINEET
SARAN, J.]
HELD: 1.1 The Hindi translation of the Constitution signed
by the members of the Constituent Assembly was published in
1950 under the authority of the President of the Constituent
Assembly. The translation of the Constitution shall be deemed
to be the authoritative text thereof in the Hindi language.
Considering the version in the Hindi language as well as in the
English language, the meaning is the same, and interpretation
does not change. There is no room for any confusion that they
are two different sources of appointment provided in Article 233.
[Paras 9, 11][184-A, C-D]
1.2 Article 233(1) provides for appointments by way of
posting and promotion. It is apparent from Article 233 that the
appointing authority the Governor has to exercise the power of
appointment in consultation with the High Court. The term
'appointment' is broader and includes appointment by way of
direct recruitment or by way of promotion, and sometimes it may
also include, if so provided in the rules, by way of absorption.
Article 233(2) starts with a negative stipulation that a person
who is not already in the service of the Union or the State, shall
be eligible only to be appointed as District Judge if he has been
an advocate or a pleader for not less than 7 years and is
recommended by the High Court for appointment. The expression
'in the service of the Union or of the State' has been interpreted
by this Court to mean the judicial service. A person from judicial
service can be appointed as a District Judge. However, Article
233(2) provides that a person who is not in the service of the
Union, shall be eligible only if he has been in practice, as an
advocate or a pleader for 7 years; meaning thereby, persons who
are in service are distinguished category from the incumbent who
can be appointed as District Judge on 7 years' practice as an
advocate or a pleader. Article 233(2) nowhere provides eligibility
of in-service candidates for consideration as a District Judge
concerning a post requiring 7 years' practice as an advocate or a
pleader. Requirement of 7 years' experience for advocate or
pleader is qualified with a rider that he should not be in the service
of the Union or the State. Article 233 provides two sources of
recruitment, one from judicial service and the other from
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advocates or pleaders. There are two separate streams provided;
one is for persons in judicial service, and the other is for those
not in judicial service of the Union or the State and have practiced
for seven years. The expression 'in service of the Union or the
State' has been interpreted in Chandra Mohan to mean judicial
service, not any other service of the Union or the State. Thus, it
is clear that the members of the judicial service alone are eligible
for appointment as against the post of District Judge as the only
mode provided for the appointment of in-service candidates is
by way of promotion. They can stake their claim as per rules for
promotion or merit promotion as the case may be. This Court
has excluded the persons from the Indian Civil Service, the
Provincial Judicial Service, or other Executive Services, before
Independence, recruitment to the post of District Judge was
provided from other services also. Article 233(2) provides that if
an advocate or a pleader has to be appointed, he must have
completed 7 years of practice. It is coupled with the condition in
the opening part that the person should not be in service of the
Union or State, which is the judicial service of the State. The
person in judicial service is not eligible for being appointed as
against the quota reserved for advocates. Once he has joined
the stream of service, he ceases to be an advocate. The
requirement of 7 years of minimum experience has to be
considered as the practising advocate as on the cut-off date, the
phrase used is a continuous state of affair from the past. The
context 'has been in practice' in which it has been used, it is
apparent that the provisions refers to a person who has been an
advocate or pleader not only on the cut-off date but continues to
be so at the time of appointment. [Paras 12-14][184-D-H;
185-A-H]
Chandra Mohan v. State of Uttar Pradesh & Ors. [1967]
1 SCR 77 : AIR 1966 SC 1987 - followed.
1.3 In-service candidates cannot apply as against the post
reserved for the advocates/pleaders as he has to be in continuous
practice in the past and at the time when he has applied and
appointed. Thus, the decision in Vijay Kumar Mishra cannot be
said to be laying down the law correctly. A person in judicial
service is eligible to be appointed as District Judge, but it is only
by way of promotion or by way of merit promotion, which concept
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has been evolved in All India Judges Association and Ors. v. Union
of India and Ors. (2002) 4 SCC 247. [Paras 24, 25][204-C-E]
Vijay Kumar Mishra & Anr. v. High Court of Judicature
at Patna & Ors. (2016) 9 SCC 313 : [2016] 3 SCR 806
- overruled.
All India Judges' Association v. Union of India (2002)
4 SCC 247 : [2002] 2 SCR 712 - relied on.
1.4 It is apparent from the decision of All India Judges
Association that in order to prove the merit of in-service
candidates, a limited departmental competitive examination has
also been provided, so that they can take march to hold the post
of District Judges on the basis of their merit. They are not
deprived of any opportunity in their pursuit once they have joined
the judicial stream, they are bound to follow the provisions. It
was open to them not to join the subordinate services. They could
have staked a claim by continuing to be an advocate to the Higher
Judicial Service as against the post of District Judge. However,
once they chose to be in service, if they had seven years'
experience at Bar before joining the judicial service, they are
disentitled to lay a claim to the 25% quota exclusively earmarked
for Advocates; having regard to the dichotomy of different streams
and separate quota for recruitment. However, when someone
joins a particular stream, i.e. a judicial service by his own volition,
he cannot sail in two boats. His chance to occupy the post of
District Judge would be by a two-fold channel, either in the 50%
seniority/merit quota, by promotion, or the quota for limited
competitive examination. The recruitment from the Bar also has
a purpose behind it. The practicing advocates are recruited not
only in the higher judiciary but in the High Court and Supreme
Court as well. The members of the Bar also become experts in
their field and gain expertise and have the experience of appearing
in various courts. The makers of the Constitution visualised and
the law administered in the country for the last seven decades
clearly reveals that the aforesaid modes of recruitment and two
separate sources, one from in-service and other from the Bar,
are recognised. No room to entertain submission of discrimination
based on Articles 14 and 16. Article 233(2) starts with the negative
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"not," which disentitles the claim of judicial officers against the
post reserved for the practicing advocates/pleaders. [Paras 2831][208-F-H; 209-A-G]
1.5 No benefit can be derived on the basis of certain
observations and suggestions made by the Law Commission as
to what may happen in case All India Judicial Service is formed.
The existing provisions are not restrictive but provide wider
choice to improve and strengthen the judicial system and in tune
with Articles 14 and 16. [Paras 36, 37][212-B-D]
1.6 In Rameshwar Dayal, this Court held that Article 233(2)
could not be interpreted in view of the explanations added to
Articles 124 and 217. There is no violation of equal opportunity.
There is no violation of any principle of the Universal Declaration
of Human Rights and the International Covenant on Civil and
Political Rights and International Covenant on Economic, Social
and Cultural Rights. [Paras 42, 43][214-E; 215-G]
1.7 In service jurisprudence, it is always permissible to
provide different sources of recruitment and quotas along with a
qualification. Equal opportunity is given, and seniority and
competence are criteria for promotion, and in merit promotion,
seniority is not to be considered. [Para 44][216-C]
1.8 The reference is answered as under :-
(i) The members in the judicial service of the State can be
appointed as District Judges by way of promotion or limited
competitive examination.
(ii) 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.
(iii) Under Article 232(2), 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.
(iv) For the purpose of Article 233(2), an Advocate has to
be continuing in practice for not less than 7 years as on the cutDHEERAJ MOR v. HON'BLE HIGH COURT OF DELHI
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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.
(v) 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.
(vi) The decision in Vijay Kumar Mishra 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.
In the cases where such in-service incumbents were
appointed by way of direct recruitment from bar as no merit is
found in the petitions and due to dismissal of the writ petitions
filed by the judicial officers, as sequel no fruits can be ripened on
the basis of selection without eligibility, they cannot continue as
District Judges. They have to be reverted to their original post.
In case their right in channel for promotion had already been
ripened, and their juniors have been promoted, the High Court
has to consider their promotion in accordance with prevailing
rules. However, they cannot claim any right on the basis of such
an appointment obtained under interim order, which was subject
to the outcome of the writ petition and they have to be reverted.
[Paras 47, 48][216-G-H; 217-A-H]
Rameshwar Dayal v. State of Punjab & Ors. AIR 1961
SC 816:[1961] SCR 874 - followed.
Satya Narain Singh v. High Court of Judicature at
Allahabad & Ors. (1985) 1 SCC 225 : [1985] 2 SCR
112; Deepak Aggarwal v. Keshav Kaushik & Ors.
(2013) 5 SCC 277 : [2013] 1 SCR 402; Sushma Suri v.
Govt. (NCT of Delhi), (1999) 1 SCC 330 : [1998] 2
Suppl. SCR 187; All India Judges Association and Anr.
v. Union of India (II) (2010) 15 SCC 170; P.
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Ramakrishnam Raju v. Union of India and Ors. (2014)
12 SCC 1 : [2014] 4 SCR 562; Government of NCT of
Delhi and Ors. v. All India Young Lawyers' Association
and Anr. (2009) 14 SCC 49 : [2009] 3 SCR 555 - relied
on.
High Court of Punjab & Haryana v. State of Haryana
(1975) 1 SCC 843 : [1975] 3 SCR 365; 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; O.P. Garg v. State of
U.P. (1991) Supp. 2 SCC 51 : [1991] 2 SCR 424; The
State of Assam and Anr. v. Kuseswar Saikia and Ors.
AIR 1970 SC 1616 : [1970] 2 SCR 928; All India
Judges' Association v. Union of India and Ors. (1992)
1 SCC 119 : [1991] 2 Suppl. SCR 206; All India Judges'
Association and Ors. v. Union of India and Ors. (1998)
8 SCC 771; Pandurangam Rao v. State of Andhra
Pradesh and Ors. AIR 1975 SC 1922 : [1976] 1 SCR
620; Chandra Mohan v. State of U.P. and Ors. (II) AIR
1976 SC 1482; Prof. Chandra Prakash Aggarwal v.
Chaturbhuj Das Parikh and Ors. (1970) 1 SCC 182 :
[1970] 3 SCR 354; State of Bihar and Ors. v. Bal
Mukund Sah and Ors. (2000) 4 SCC 640 : [2000] 2
SCR 299 - referred to.
The Construction of Statutes 202 (1940) by Crawford -
referred to.
PER S. RAVINDRA BHAT, J. (SUPPLEMENTING)
HELD : 1.1 A close reading of Article 233, other provisions
of the Constitution, and the judgments discloses the following:
(a) 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]);
(b) While so appointing the Governor is bound to consult
the High Court (Article 233 [1]: Chandra Mohan (supra) and
Chandramouleshwar Prasad v Patna High Court [1970] 2 SCR
666);
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(c) Article 233 (1) cannot be construed as a source of
appointment; it merely delineates as to who is the appointing
authority;
(d) 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 Mahammad [1967] 1 SCR 454);
(e) 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).
(f) 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' practise 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 practise on the date of the eligibility
condition, or applying for the post). The sequitur clearly is that a
judicial officer is not one who has been for not less than seven
years, an advocate or pleader.
The net result of the decision in Chandra Mohan, and
subsequent decisions which followed it, is that Article 233 (2)
renders ineligible all those who hold civil posts under a State or
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the Union, just as it renders all advocates with less than seven
years' practice ineligible, on the date fixed for reckoning
eligibility. Equally, those in judicial service [i.e. holders of posts
other than District Judge, per Article 236 (2)] are not entitled to
consideration because the provision (Article 233 [2]) does not
prescribe any eligibility condition. Does this mean that any judicial
officer, with any length of service as a member of the judicial
service, is entitled to consideration under Article 233 (2)? The
answer is clearly in the negative. This is because the negative
phraseology through which eligibility of holders of civil posts, or
those in civil service (of the State or the Union) and advocates
with seven years' service is couched. However, the eligibility
conditions are not spelt out in respect of those who are in the
judicial service. [Paras 24, 25][237-B-E; 238-A-D; 239-A-E]
1.2 The omission- in regard to spelling out the eligibility
conditions vis-à-vis judicial officers, to the post of District Judge,
in the opinion of this court, is clearly by design. This subject
matter is covered by three provisions: Article 233 (1) - which
refers to promotions to the post of District Judge; Article 234,
which, like Article 233 (1) constitutes the Governor as the
appointing authority in respect of judicial posts or services, (other
than District Judges), and like Article 233 (1), subject to
recommendation of the High Court concerned. This position is
most definitely brought home by the fact that Article 235 vests in
the High Courts the power of supervision and control of the judicial
service, "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." The corollary
to this is that the Governor is appointing authority for the post of
District Judge, and other judicial posts; both are to be filled after
prior consultation with the High Court, and crucially, the promotion
of judicial officers, to the post of District Judge, is regulated by
conditions (read rules) framed by the High Court. The
Constitution makers clearly wished to draw a distinction between
the two sources of appointment to the post of District Judge. For
one, i.e. Advocates, eligibility was spelt out in negative
phraseology, i.e. not less than seven years' practice; for judicial
officers, no eligibility condition was stipulated in Article 233 (2):
this clearly meant that they were not eligible to be appointed (by
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direct recruitment) as they did not and could not be considered
advocates with seven years' practise, once they entered the
judicial service. The only channel for their appointment, was in
accordance with rules framed by the High court, for promotion
(as District Judges) of officers in the judicial service (defined as
those holding posts other than District Judges, per Article 236
[b]). [Paras 26, 27][239-E-H; 240-A-C]
1.3 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. 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. 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. [Paras 30, 31][241A-D, G-H]
1.4 This court is also of the opinion that if rules of any State
permit judicial officers to compete in the quota for appointment
as District Judges, they are susceptible to challenge. The reason
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for this conclusion is that where a dichotomy is maintained, and
two distinct sources for appointment are envisaged, like the
present, enabling only 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. This would be contrary to the text and mandate of Article
233 (2), which visualized that such category of candidates would
always be eligible and occupy the post of District Judge. Clear
quotas for both sources have been earmarked by High Courts. If
one those in one stream, or source- i.e. judicial officers- are
permitted to compete in the quota earmarked for the other (i.e.
advocates) without the converse situation (i.e. advocates
competing in the quota earmarked for judicial officers- an
impossibility) the result would be rank discrimination. Another
strong reason drives us to this conclusion. The Constitution
makers were aware that the judicial branch had to be
independent, and at the same time, reflect a measure of diversity
of thought, and approach. This is borne out by eligibility conditions
spelt out clearly in regard to appointments at every level of both
the lower and higher judiciary: the District court, the High Courts
and the Supreme Court. In regard to judicial positions in each of
these institutions, the Constitution enables appointments, from
amongst members of the Bar, as its framers were acutely
conscious that practising advocates reflect independence and are
likely offer a useful attribute, i.e. ability to think differently and
have novel approaches to interpretation of the laws and the
Constitution, so essential for robustness of the judiciary, as well
as society as a whole. This view is fortified by Article 217 (2),
which spells out two sources from which appointments can be
resorted to for the position of judge of a High Court: firstly,
member of a judicial service of a State [Article 217 (a)] and an
advocate with ten years' experience [Article 217 (b)]. For the
Supreme Court, Article 124 (3) (a) enables consideration of a
person with five years' experience as a High Court judge; Article
124(3)(b) enables consideration of an advocate with ten years'
experience at the bar in any High Court; Article 124(3)(c) enables
consideration of a distinguished jurist. Significantly, advocates
with stipulated experience at the bar are entitled, by express
provisions of the Constitution [Articles 233 (2), Article 217 (b)
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and Article 124 (3) (b)] to be considered for appointment to the
District Courts, High Courts and the Supreme Court, respectively.
However, members of the judicial service can be considered only
for appointment (by promotion) as District Judges, and as High
Court judges, respectively. Members of the judicial service
cannot be considered for appointment to the Supreme Court.
Likewise, academics or distinguished jurists, with neither practise
at the Bar, nor any experience in the judicial service, can be
considered for appointment as District Judge, or as High Court
judge. [Paras 32-34][242-A-H; 243-A-B]
1.5 The Constitution makers, in the opinion of this court,
consciously wished that members of the Bar, should be considered
for appointment at all three levels, i.e. as District judges, High
Courts and this court. This was because counsel practising in
the law courts have a direct link with the people who need their
services; their views about the functioning of the courts, is a
constant dynamic. Members of the judicial service of any State
cannot claim to be appointed for vacancies in the cadre of District
Judge, in the quota earmarked for appointment from amongst
eligible Advocates, under Article 233. The decision in Vijay Kumar
Mishra, as far as it makes a distinction between consideration, of
a candidate's eligibility, at the stage of selection, and eligibility
reckonable at the time of appointment, is incorrect. There is clear
authority to the proposition that eligibility of any candidate is to
be reckoned, not from the date of his or her selection, but in
terms of the rules, or the advertisement for the post. Therefore,
the observation in Vijay Kumar Mishra that "the right of such a
person to participate in the selection process undertaken by the State
for appointment to any post in public service (subject to other rational
prescriptions regarding the eligibility for participating in the selection
process such as age, educational qualification etc.) and be
considered is guaranteed under Art. 14 and 16 of the Constitution"
is not correct. With respect, the distinction sought to be made,
between "selection" and "appointment" in the context of
eligibility, is without foundation. Vijay Kumar Mishra, to the extent
that it is contrary to Ashok Kumar Sharma, as regards participation
in the selection process, of candidates who are members of the
judicial service, for appointment to the post of District Judge,
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from amongst the quota earmarked for advocates with seven
years' practice, was wrongly decided. To that extent, Vijay Kumar
Mishra is overruled. [Paras 35-37][243-C-G; 244-G-H;
245-A, E]
Vijay Kumar Mishra & Anr. v. High Court of Judicature
at Patna & Ors. (2016) 9 SCC 313 : [2016] 3 SCR
806 - overruled.
1.6 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 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. [Para 38][245-F-G]
Chandra Mohan v. State of Uttar Pradesh & Ors. [1967]
1 SCR 77 : AIR 1966 SC 1987; State of Assam and
Ors. v. S.N. Sen & Ors [1972] 2 SCR 251 - followed.
Satya Narain Singh v. High Court of Judicature at
Allahabad & Ors. (1985) 1 SCC 225 : [1985] 2 SCR
112; Deepak Aggarwal v. Keshav Kaushik & Ors.
(2013) 5 SCC 277 : [2013] 1 SCR 402; State of West
Bengal v. Nripendra Nath Bagchi [1966] 1 SCR 771;
High Court of Punjab and Haryana etc. v. State of
Haryana [1975] 3 SCR 365; Chandramouleshwar
Prasad v. Patna High Court [1970] 2 SCR 666; State
of Assam v. Ranga Mahammad [1967] 1 SCR 454;
Ashok Kumar Sharma & Ors. v. Chander Shekhar &
Ors (1997) 4 SCC 18 : [1997] 2 SCR 896 - relied on.
Rameshwar Dayal v. State of U.P. AIR 1961 SC 816 :
[1961] SCR 874; Mahesh Chandra Gupta v. Union of
India and Ors. (2009) 8 SCC 273 : [2009] 10 SCR
921 State of Haryana v. Inder Prakash Anand H.C.S.
& Ors. [1976] 2 SCR 977; All India Judges' Association
v. Union of India (2010) 15 SCC 170; U.P. Public
Service Commission v Alpana (1994) 2 SCC 723 :
[1994] 1 SCR 131; Bhupinderpal Singh & Ors. v. State
of Punjab & Ors. (2000) 5 SCC 262 - referred to.
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Case Law Reference
IN THE JUDGMENT OF ARUN MISHRA, J. (FOR
HIMSELF AND VINEET SARAN, J.)
[1961] SCR 874
followed
Para 2
[1967] 1 SCR 77
followed
Para 2
[1985] 2 SCR 112
relied on
Para 2
[1975] 3 SCR 365
referred to
Para 3
[2002] 2 SCR 712
relied on
Para 3
[2016] 3 SCR 806
overruled
Para 4
[2013] 1 SCR 402
relied on
Para 5
(2010) 15 SCC 170
referred to
Para 5
[1998] 2 Suppl. SCR 187
relied on
Para 23
(2010) 15 SCC 170
referred to
Para 25
[1991] 2 SCR 424
referred to
Para 26
[2014] 4 SCR 562
relied on
Para 34
[2009] 3 SCR 555
relied on
Para 34
[1970] 2 SCR 928
referred to
Para 35
[1991] 2 Suppl. SCR 206
referred to
Para 38
(1998) 8 SCC 771
referred to
Para 39
[1976] 1 SCR 620
referred to
Para 40
AIR 1976 SC 1482
referred to
Para 41
[1970] 3 SCR 354
referred to
Para 42
[2000] 2 SCR 299
referred to
Para 43
IN THE JUDGMENT OF S. RAVINDRA BHAT, J.
(SUPPLEMENTING)
[1961] SCR 874
referred to
Para 2
[1967] 1 SCR 77
followed
Para 2
[1985] 2 SCR 112
relied on
Para 2
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C
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E
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[2013] 1 SCR 402
relied on
Para 2
[2016] 3 SCR 806
overruled
Para 2
[2009] 10 SCR 921
referred to
Para 4
[1966] 1 SCR 771
relied on
Para 11
[1975] 3 SCR 365
relied on
Para 11
[1976] 2 SCR 977
referred to
Para 11
[1972] 2 SCR 251
followed
Para 12
[1970] 2 SCR 666
relied on
Para 24
[1976] 1 SCR 454
relied on
Para 24
(2010) 15 SCC 170
referred to
Para 31
[1997] 2 SCR 896
relied on
Para 36
[1994] 1 SCR 131
referred to
Para 36
(2000) 5 SCC 262
referred to
Para 36
CIVIL APPELLATE/ORIGINAL/INHERENT JURISDICTION
: Civil Appeal No. 1698 of 2020.
From the Judgment and Order dated 19.02.2015 of the High Court
of Delhi at New Delhi in Writ Petition (Civil) No. 9303 of 2014
With
Civil Appeal Nos. 1699, 1700, 1701, 1702, 1707, 1703, 1704, 1706,
1705 of 2020.
Writ Petition (Civil) Nos. 77, 130, 405, 414, 423, 600, 598, 601,
602, 733 of 2016, 189, 222, 316, 334, 371 of 2017, 96, 102, 103, 108, 110,
106, 146, 123, 124, 138, 155, 145, 158, 174, 291, 287, 352, 387, 392, 396,
530, 519, 535, 581, 578, 612, 629, 596, 616, 632, 608, 628, 617, 624, 631,
635, 636, 641, 642, 639, 640, 650, 644, 658, 659, 680, 671, 677, 681, 686,
703, 696, 717, 728, 726, 727, 1272, 1302 of 2018, 656, 744, 999, 1054,
1053, 1080, 1073, 1089, 1086, 1150, 1266 of 2019, T.P. (C) No. 272 of
2018, Contempt Petition (C) No. 1023 of 2019 in W.P. (C) No. 414 of
2016.
A. N. S. Nadkarni, ASG, Ashish Kumar, AAG, Sunil Fernandes,
AAG, MP, Ms. Vibha Dutta Makhija, Ms. Kiran Suri, P. V. Surendranath,
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A. Mariarputham, S. R. Singh, Pravin H. Parekh, Ms. Priya Hingorani,
Shekhar Naphade, Jaideep Gupta, Dr. K. P. Kylasanatha Pillay, Ms.
Anjana Prakash, R.Venkataramani, Ritin Raj, KTS Tulsi, Ajit Kr. Sinha,
V. Giri, Rajiv Dutta, P. Ravindran, Purushaindra Kaurav, Jayant Bhushan,
P.S. Patwalia, Sr. Advs., Santosh Kumar, Deepak Anand, Bharat Singh,
Ms. Rashmi Malhotra, Ms. Prerna Kumari, M. K. Maroria, B. V.
Balram Das, Aishwarya Kumar, Ms. Resmitha R. Chandran, Sawan
Kumar Shukla, Biju Joseph, Anan D. N. Rao, Venkatesh Rao, Rahul
Mishra, Ms. Sangeeta M.R., Ms. Avni Sharma, Adarsh Upadhyay,
Kshatrshal Raj, Ms. Tanya Chaudhary, Ms. Nitika Pandey, Nikhil
Ramdev (for M/s. Parekh & Co.), Vivek Singh, Ashwani Kumar Dubey,
Pankaj Sharma, Prashant Kumar Umrao, Sandeep Kr. Mishra, Chandra
Shekhar Mishra, Ashihsh Chaubey, Ms. S. Lakshmi Iyer, Ms. Aishwarya
Dash, D.K. Devesh, U.P. Singh, A.B. Singh, Piyush Upadhyay, Kunal
Chatterji, Ms. Maitrayee Banerjee, Pradeep C., A. Venayagam Balan,
Ms. V. S. Lakshmi, Zartab Anwar, P. Prabhakar, D. Srinivas, A.
Venkateswara Rao, Aljo K. Joseph, Ms. Shelna K., Siddhartha Jha,
Deepak Goel, Ms. S. Janani, Kamal Kumar Pandey, Jitendra Kr. Yadav,
Anurag Singh, Ms. Nikita Pandey (for M/s. Parekh & Co.), TGN Nair,
Arjun Garg, S. Mahesh Sahasranaman, Anuradha Mishra, A.V. Rangam,
B.A. Ranganadhan, Raunak Jain, Ketan Paul, Tushar Bhushan, Amartya
Bhushan, Tushar Bakshi, Shovit Singh, Ms. Harshika Verma, Akshay
Chadha, Dhruv Sheron, A. P. Mayee, Ms. Deepanwita Priyanka, A.
Rajarajan, Himanshu Sharma, Ms. Aditi Sharma, Seeta Ram Sharma,
Ram Niwas Sharma, Ms. Archana Pathak Dave, Manoj Goel, A. Kumar,
Wajeeh Shafiq, Harish Pandey, Yunus Malik, Anish Maheshwari, Ms.
Saroj Bala, Aman Malik, Samir Malik, Rohit K. Singh, Dushyant Kumar,
T. V. George, Govind Narayan Kaushik, Ms. Neha Dutt Sharma, V.
Sushant, Ram Naresh Yadav, Apoorv Kurup, Ms. Upama Bhatacharjee,
Vijay Pratap Singh, Hitesh Kumar Sharma, Akhileshwar Jha, Manoj
Shrivastava, Rakesh Kumar, Pankaj Kumar Mishra, Sanjay Kumar
Dubey, Ms. Archana Mishra, Ms. Nupur Kumar, Zeeshan Diwan, Prastut
Dalvi, Rahul Kaushik, K. Parameshwar, M. V. Mukunda, G. Prakash,
Jishnu M. L., Mrs. Priyanka Prakash, Mrs. Beena Prakash, Ms. Uttara
Babbar, Ms. Bhavana Duhoon, Manan Bansal, Amol B. Karande,
Ravindra H., Rahul Chitnis, Aaditya A. Pande, Sachin Patil, Ms. Nidhi,
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Vaisal Dathan, Arjun Garg, Devansh Srivastava, Rati Tandon, P.
Prabhakar, D. Srinivas, Sanjeev Kumar, Anurag Dubey, Ms. Chhaya
Kumari, Bhupendra Kr. Bhardwaj, S.R. Setia, Fuzail Ahmad Ayyubi,
Abdul Qadir, Ms. Aditi Gupta, Ankur Chhiber, R.C. Kaushik,
Yashvardhan, Jagjit Singh Chhabra, Alok Kumar, Sadashiv, Shantanu
Kumar, Shakti Vardhan, Ajay Kr. Talesara, Himanshu Mehra, Ms.
Vaishali Gupta, Abhishek Atrey, Ms.