DHEERAJ MOR v. HON’BLE HIGH COURT OF DELHI

The Judgments of the Court were delivered by ARUN MISHRA, J.

1Copy pinpoint1. A Division Bench of this Court has referred the matters. The B question involved in the matters is 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. 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. Yet 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.

2Copy pinpoint2. 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/ F pleader. Reliance has been placed on the decisions of this Court in Rameshwar Dayal v. State of Punjab & Ors., AIR 1961 SC 816 and in Chandra Mohan v. State of Uttar Pradesh & Ors., (1967) 1 SCR 77 = AIR 1966 SC 1987 to submit that under Article 233(2) there are two sources of direct recruitment to the higher judicial service; one from G the Bar and the other from service. The decisions of Constitution Bench in Chandra Mohan (supra) and Rameshwar Dayal (supra) are binding. The decision to the contrary in Satya Narain Singh v. High Court of Judicature at Allahabad & Ors., (1985) 1 SCC 225 taking a departure negating the right of the member of the judicial service and confining the direct recruitment from the Bar through practicing advocates effectively H

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whittle down the law laid down in Chandra Mohan (supra) and A Rameshwar Dayal (supra).

3Copy pinpoint3. It is argued that articles 233(1) and 233(2) inter alia deal with direct recruitment, as is apparent from the Constitution Bench decision of this Court in the High Court of Punjab & Haryana v. State of Haryana, (1975) 1 SCC 843. The rules framed by various High Courts B disqualifying the members of subordinate judicial service from direct recruitment to the higher judicial service are not in consonance with the law laid down in Chandra Mohan (supra) and Rameshwar Dayal (supra) and the provisions contained in Article 233. The rules, which completely cut off one stream and provide only one stream of direct recruitment then the High Court’s rules would have to be declared ultra C vires being violative of Article 233. It was further submitted that the rules framed by various High Courts arbitrarily discriminate between advocates and the members of the judicial service in the matter of direct recruitment, the rules suffer from the vice of arbitrariness. It was also submitted that the decision in All India Judges’ Association v. Union D of India, (2002) 4 SCC 247 has been rendered by a Bench of three Judges. The decision cannot overturn the two earlier Constitution Bench judgments of this Court. In All India Judges’ Association case (supra), the Court proceeded on the basis that there was only one source of direct recruitment to the higher judicial service, which is violative of the dictum laid down by a larger Bench of this Court in Rameshwar Dayal E (supra) and Chandra Mohan (supra). The decision in All India Judges’ Association case (supra) is inadvertent and cannot be said to be binding. The quota system from the service and the Bar would apply to those who apply within the quota. The quota system cannot override the constitutional scheme of Article 233(1) and (2). F

4Copy pinpoint4. Reliance has also been placed on behalf of the petitioners upon the decision in Vijay Kumar Mishra & Anr. v. High Court of Judicature at Patna & Ors., (2016) 9 SCC 313 in which it has been held that the bar prescribed under Article 233(2) prohibits only the appointment of persons in service of Central/State Government and not their participation G in the recruitment process. It is the constitutional right of such persons as well to participate in the selection process. In case they are selected, they can resign and join the post.

5Copy pinpoint5. On the other hand, it was submitted on behalf of various High Courts as well as on behalf of the practicing advocates that Article 233(2) H

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6Copy pinpoint6. The main question for consideration is the interpretation of Article 233 of the Constitution of India, and based upon its interpretation, the question concerning the rules being ultra vires of the same has to be examined. Rules of various High Courts, as existing preclude members of the judicial service from staking their claim as against the posts reserved for direct recruitment from the Bar. Article 233 is extracted hereunder: “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. (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.”

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7Copy pinpoint7. The Hindi version of Article 233 has also been relied upon. A The same is extracted hereunder: ^^v/;k; 6&v/khuLFk U;k;ky; 233- ftyk U;k;k/kh'kksa dh fu;qfDr & ¼1½ fdlh jkT; esa ftyk U;k;kèkh'k fu;qDr gksus okys O;fDr;ksa dh fu;qfDr rFkk ftyk U;k;k/kh'k dh inLFkkiuk B vkSj izkséfr ml jkT; dk jkT;iky ,sls jkT; ds laca/k esa vf/kdkfjrk dk iz;ksx djus okys mPp U;k;ky; ls ijke'kZ djsxkA ¼2½ og O;fDr] tks la?k dh ;k jkT; dh lsok esa igys ls gh ugha gS] ftyk U;k;k/kh'k fu;qDr gksus ds fy, dsoy rHkh ik= gksxk tc og de ls de C lkr o"kZ rd vf/koDrk ;k IyhMj jgk gS vkSj mldh fu;qfDr ds fy, mPp U;k;ky; us flQkfj'k dh gSA**

8Copy pinpoint8. It was submitted that Article 394A had been inserted by way of the Constitution (Fifty-eighth Amendment) Act, 1987. The same provides as under: D “394A. Authoritative text in the Hindi language.— (1) The President shall cause to be published under his authority,— (a) the translation of this Constitution in the Hindi language, signed by members of the Constituent Assembly, with such modifications as may be necessary to bring it in conformity with the language, style and terminology adopted in the authoritative texts of Central Acts in the Hindi language, and incorporating therein all the amendments of this Constitution made before such publication; and (b) the translation in the Hindi language of every amendment of this Constitution made in the English language. (2) The translation of this Constitution and of every amendment thereof published under clause (1) shall be construed to have the same meaning as the original thereof, and if any difficulty arises in so construing any part of such translation, the President shall cause the same to be revised suitably. (3) The translation of this Constitution and of every amendment thereof published under this article shall be deemed to be, for all purposes, the authoritative text thereof in the Hindi language.” H

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9Copy pinpoint9. 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.

10Copy pinpoint10. Crawford in The Construction of Statutes, 202 (1940) has also been referred to, especially the following observations: “In some jurisdictions statutes may be enacted in more than one language. Where this is the situation, both texts constitute the law and each must be considered in ascertaining the meaning of the C legislature.”

11Copy pinpoint11. 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.

12Copy pinpoint12. 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.

13Copy pinpoint13. 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 H

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for advocate or pleader is qualified with a rider that he should not be in A the service of the Union or the State. Article 233 provides two sources of recruitment, one from judicial service and the other from 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 B ‘in service of the Union or the State’ has been interpreted in Chandra Mohan (supra) 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. In Chandra Mohan (supra), this Court held that no person from the Executive Service can be promoted as District Judge. There is separation of the judiciary in terms of Article 50 of the Constitution of India. It mandates the State to take steps to separate the judiciary from the Executive in the public services of the State. Article 50 is extracted hereunder: “50. Separation of judiciary from executive. — The State E shall take steps to separate the judiciary from the executive in the public services of the State.”

14Copy pinpoint14. 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. H

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15Copy pinpoint15. Reliance has been placed on Chandra Mohan v. State of U.P., (supra) by both the sides, facts of which reflect that Allahabad High Court called for applications for recruitment to 10 vacancies in the Uttar Pradesh Higher Judicial Service from Barristers, Advocates, Vakils and pleaders of more than 7 years’ standing and from judicial officers. Six incumbents were selected - three advocates and three judicial officers. B The Selection Committee sent two lists, one comprising the names of the three advocates and the other comprising the names of three judicial officers to the High Court. There was agreement that the selection from the Bar was good. The question arose about the legality of the appointment of judicial officers. The question arose was whether the C incumbents who were not members of the judicial service could have been appointed as District Judges under Rule 14. This Court while striking down the Rules interpreted Article 233 thus: “7. The first question turns upon the provisions of Art. 233 of the Constitution. Article 233(1) reads: D “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.” We are assuming for the purpose of these appeals that the E “Governor” under Art. 233 shall act on the advice of the Ministers. So, the expression “Governor” used in the judgment means Governor acting on the advice of the Ministers. The constitutional mandate is clear. The exercise of the power of appointment by the Governor is conditioned by his consultation with the High Court, F that is to say, he can only appoint a person to the post of district judge in consultation with the High Court. The object of consultation is apparent. The High Court is expected to know better than the Governor in regard to the suitability or otherwise of a person, belonging either to the “judicial service” or to the Bar, to be appointed as a district judge. Therefore, a duty is enjoined on the G Governor to make the appointment in consultation with a body which is the appropriate authority to give advice to him. This mandate can be disobeyed by the Governor in two ways, namely, (i) by not consulting the High Court at all, and (ii) by consulting the High Court and also other persons. In one case he directly infringes the mandate of the Constitution and in the other he

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indirectly does so, for his mind may be influenced by other persons not entitled to advise him. That this constitutional mandate has both a negative and positive significance is made clear by the other provisions of the Constitution. Wherever the Constitution intended to provide more than one consultant, it has said so: see Arts. 124(2) and 217(1). Wherever the Constitution provided for consultation of a single body or individual it said so: see Art.

222. Art. 124(2) goes further and makes a distinction between persons who shall be consulted and persons who may be consulted. These provisions indicate that the duty to consult is so integrated with the exercise of the power that the power can be exercised only in consultation with the person or persons designated therein. C To state it differently, if is empowered to appoint in consultation with C, he will not be exercising the power in the manner prescribed if he appoints in consultation with and D.” This Court in Chandra Mohan v. State of U.P. (supra) also observed, concerning recruitment from the Bar under Article 233(2), D the Governor can appoint only advocates recommended by the High Court to the judicial service. This Court has held: “11. The position in the case of district judges recruited directly from the Bar is worse. Under Art. 233(2) of the Constitution, the Governor can only appoint advocates recommended by the High E Court to the said service. But under the Rules, the High Court can either endorse the recommendations of the Committee or create a deadlock. The relevant rules, therefore, clearly contravene the constitutional mandates of Art. 233(1) and (2) of the Constitution and are, therefore, illegal.” F (emphasis supplied)

16Copy pinpoint16. Rule 14 of U.P. Rules which came up for consideration of this Court in Chandra Mohan (supra) is extracted hereunder: “Rule 14. Direct Recruitment.-(1) Applications for direct recruitment to the service shall be called for by the Court and G 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 Judge concerned and H

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A 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.”

17Copy pinpoint17. After having answered the question about recruitment from the Bar, the further question considered in Chandra Mohan (supra) was whether the Governor could directly appoint persons from service other than judicial service as District Judges in consultation with the High Court. They belonged to the executive branch of the Government and performed certain revenue and ministerial functions. This Court took note of the fact that in the pre-Independence era, there was a demand that the judiciary should be separated from the Executive, and that was based upon the assumption that unless they were separated, independence of the judiciary at the lower level would be a mockery. Thus, Article E 50 of Directive Principles of State Policy provides that States to take steps to separate judiciary from the executive in public services of the State. There shall be separate judicial service from the executive service. This Court considered the provisions of Articles 234, 235, 236 and 237 and observed that there are two F sources of recruitment, services of the Union or State and members of the Bar. This Court observed thus: “15. With this background, if the following provisions of the Constitution are looked at, the meaning of the debated expressions therein would be made clear: G We have already extracted Art. 233. Article 234. 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 H

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after consultation with the State Public Service Commission A and with the High Court exercising jurisdiction in relation to such State. Article 235. 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 Judges 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. In this Chapter- (a) the expression “district judge” includes judges 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. 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. G 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 H

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A 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 B 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) C As to the question whether persons from other services can be appointed as District Judges, the expression service of Union or State, has been held to be construed to be judicial service in Article 233(2) thus: “16. So far there is no dispute. But the real conflict rests on the D question whether the Governor can appoint as district judges persons from services other than the judicial service; that is to say, can he appoint a person who is in the police, excise, revenue or such other service as a district judge? The acceptance of this position would take us back to the pre-independence days and that too to the conditions prevailing in the Princely States. In the E Princely States one used to come across appointments to the judicial service from police and other departments. This would also cut across the well-knit scheme of the Constitution and the principle underlying it, namely, the judiciary shall be an independent service. Doubtless if Art. 233(1) stood alone, it may be argued that the Governor may appoint any person as a district judge, whether legally qualified or not, if he belongs to any service under the State. But Art. 233(l) 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. Can it be said that in the context of Ch. VI of Part VI of the Constitution “the service of the Union H or of the State” means any service of the Union or of the State or

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does it mean the judicial service of the Union or of the State? The A setting, viz., the chapter dealing with subordinate courts, in which the expression “the service” appears indicates that the service mentioned therein is the service pertaining to courts. That apart, Art. 236(2) defines the expression “judicial service” to mean 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. 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 Article 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 Constitution would not have conferred a blanket power on the Governor to appoint any person from any service as a district judge.

18Copy pinpoint18. We, therefore, construe the expression “the service” in cl. (2) of Art. 233 as the judicial service.” (emphasis supplied) G

18. In Chandra Mohan v. State of U.P. (supra), this Court further noted the history that the Governor-General in Council had issued a notification in 1922 empowering the local Government to make appointments to the said service from the members of the Provincial Civil Service (Judicial Branch) or the members of the Bar. This Court H

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A had also noted that earlier till India attained Independence, the Governor- General made appointments of District Judges from three sources: (i) Indian Civil Service; (ii) Provincial Judicial Service; and (iii) the Bar. After India attained freedom, recruitment from Indian Civil Service was discontinued by the Government of India, and it was decided that the members of the newly created Indian Administrative Service would not be given judicial posts. Thereafter District Judges were appointed only from either the judicial service or from the Bar. The rules framed by the Governor empowering him to recruit District Judges from the judicial officers were held to be unconstitutional. This Court has observed thus: “20. The history of the said provisions also supports the said conclusion. Originally the posts of district and sessions judges and additional sessions judges were filled by persons from the Indian Civil Service. In 1922 the Governor-General-in-Council issued a notification empowering the local government to make appointments to the said service from the members of the D Provincial Civil Service (Judicial Branch) or from the members of the Bar. In exercise of the powers conferred under S. 246(1) and S. 251 of the Government of India Act, 1935, the Secretary of State for India Framed rules styled Reserved Posts (Indian Civil Service) Rules, 1938. Under those Rules, the Governor was given the power to appoint to a district post a member of the E judicial service of the Province or a member of the Bar. Though S. 254(1) of the said Act was couched in general terms similar to those contained in Art. 233(1) of the Constitution, the said rules did not empower him to appoint to the reserved post of district judge a person belonging to a service other than the judicial service. F Till India attained independence, the position was that district judges were appointed by the Governor from three sources, namely, (i) the Indian Civil Service, (ii) the Provincial Judicial Service, and (iii) the Bar. But after India attained independence in 1947, recruitment to the Indian Civil Service was discontinued and the Government of India decided that the members of the newly G created Indian Administrative Service would not be given judicial posts. Thereafter district judges have been recruited only from either the judicial service or from the Bar. There was no case of a member of the executive having been promoted as a district judge. If that was the factual position at the time the Constitution H came into force, it is unreasonable to attribute to the makers of

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the Constitution, who had so carefully provided for the A independence of the judiciary, an intention to destroy the same by an indirect method. What can be more deleterious to the good name of the judiciary than to permit at the level of district judges, recruitment from the executive departments? Therefore, the history of the services also supports our construction that the expression B “the service” in Art. 233(2) can only mean the judicial service. (21) For the aforesaid reasons, we hold that the Rules framed by the Governor empowering him to recruit district judges from the “judicial officers” are unconstitutional and, therefore, for that reason also the appointment of respondents 5, 6 and 7 was bad. C (23) In the result, we hold that the U.P. Higher Judicial Service Rules providing for the recruitment of district judges are constitutionally void and, therefore, the appointments made thereunder were illegal. We set aside the order of the High Court and issue a writ of mandamus to the 1st respondent not to make any appointment by direct recruitment to the U.P. Higher Judicial D Service in pursuance of the selections made under the said Rules. The 1st respondent will pay the costs of the appellant. The other respondents will bear their own costs.” (emphasis supplied) E

19Copy pinpoint19. It is apparent from the decision in Chandra Mohan v. State of U.P., (supra) that this Court has laid down that concerning District Judges recruited directly from the Bar, 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 F submission espoused on behalf of in-service candidates. In the abovementioned para 11 of Chandra Mohan (supra), the position is made clear. In Chandra Mohan (supra) the Court held that only advocates can be appointed as direct recruits, and inter alia the Rule 14 providing for executive officers’ recruitment was struck down. This Court G 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.

20Copy pinpoint20. Reliance has also been placed on the decision in Rameshwar Dayal v. State of U.P., AIR 1961 SC 816. The question which arose for H

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A consideration there was as to the eligibility of persons on the roll of advocates of East Punjab High Court before the partition of India in 1947 for appointment as a District Judge. This Court held that the period of practice before Lahore High Court could be counted as against the required period of 7 years for appointment as District Judge. This Court laid down that practice rendered in or before the Lahore High Court B before partition was not open to objection under Article 233(2) of the Constitution. Even if the word ‘advocate’ in clause (2) of Article 233 meant an advocate of a court in India, and the appointee must be such an advocate at the time of his appointment, no objection can be raised on this ground because being factually on the roll of Advocates of the C Punjab High Court at the time of appointment, the candidate was admittedly an advocate in a court in India and continued as such till the date of his appointment. This Court also considered the principle applied to the East Punjab High Court. An advocate of the Lahore High Court was entitled to practice in the new High Court counted his seniority on the strength of his standing in the Lahore High Court. It was held that a D person who continued as advocate at the time of his appointment as District Judge fulfilled the requirement of Article 233. Emphasis was laid by this Court that such a practice was recognised under clause 6 of the High Court of Punjab Order, 1947. Earlier, the High Court used to maintain the rolls of advocates. The question which arose for consideration was whether respondent Nos.2 to 6 fulfilled the requirements of having been 7 years an advocate or pleader. The submission made was that practice rendered outside the territory of India cannot be counted as practice for counting 7 years. This Court interpreted Article 233 distinguishing it from Article 124 and Article 217 and held that under clause (1), the Government can appoint such a person who is already in the service of the Union or State. No special qualifications were prescribed under clause (1) of Article 233. The Governor can appoint such a person as District Judge. However, as to a person not already in service, the qualification prescribed in Article 233 is that he should be an advocate or a pleader of 7 years’ standing. This Court G answered the question thus: “11. This is the background against which we have to consider the argument of learned counsel for the appellant. Even if we assume without finally pronouncing on their correctness that learned counsel is right in his first two submissions viz. that the word “advocate” in clause (2) of Art. 233 means an advocate of

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a court in India and the appointee must be such an advocate at the time of his appointment, no objection on those grounds can be raised to the appointment of three of the respondents who were factually on the roll of Advocates of the Punjab High Court at the time of their appointment; because admittedly they were advocates in a court in India and continued as such advocates till the dates of their appointment. The only question with regard to them is whether they can count in the period of seven years their period of practice in or under the Lahore High Court. The answer to this question is clearly furnished by clause 6(2) of the High Courts (Punjab) Order, 1947, read with S. 8(3) of the Bar Councils Act,

1926. That clause lays down that the right of audience in the High C Court of East Punjab shall be regulated in accordance with the principle in force in the Lahore High Court immediately before the appointed day. The relevant rule in the Lahore High Court Rules laid down that Advocates who are Barristers shall take precedence inter se according to the date of call to the Bar; D Advocates who are not Barristers, according to the dates when they became entitled to practice in a High Court. The same principle applied to the East Punjab High Court, and an advocate of the Lahore High Court who was recognised as an advocate entitled to practise in the new High Court counted his seniority on the strength of his standing in the Lahore High Court. He did not lose that seniority, which was preserved by the Bar Councils Act, 1926, and we see no reasons why for the purpose of cl. (2) of Art. 233 such an advocate should not have the same standing as he has in the High Court where he is practising.

12. Learned counsel for the appellant has also drawn our attention to Explanation I to cl. (3) of Art. 124 of the Constitution relating to the qualifications for appointment as a Judge of the Supreme Court and to the explanation to cl. (2) of Art. 217 relating to the qualifications for appointment as a Judge of a High Court, and has submitted that where the Constitution makers thought it necessary they specifically provided for counting the period in a G High Court which was formerly in India. Articles 124 and 217 are differently worded and refer to an additional qualification of citizenship which is not a requirement of Art. 233, and we do not think that cl. (2) of Art. 233 can be interpreted in the light of explanations added to Arts. 124 and 217. Article 233 is a self H

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A 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 cl. (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 cl. (2) and all that is required is that he should be an advocate or pleader of seven years’ standing. The clause does not say how that standing must be reckoned and if an Advocate of the Punjab High Court is entitled to count the period of his practice in the Lahore High Court for determining his standing at the Bar, we see nothing in Art. 233 C which must lead to the exclusion of that period for determining his eligibility for appointment as district judge.

13. What will be the result if the interpretation canvassed for on behalf of the appellant is accepted? Then, for seven years beginning from August 15, 1947, no member of the Bar of the Punjab High D Court would be eligible for appointment as district judge — a result which has only to be stated to demonstrate the weakness of the argument. We have proceeded so far on the first two submissions of learned counsel for the appellant, and on that basis dealt with his third submission. It is perhaps necessary to add that we must not be understood to have decided that the expression E ‘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 F Constitution like Art. 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-sec. (3) of S. 86 of the Representation of the People Act, 1951. We G 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 cl. 2 H of Art. 233 of the Constitution.

DHEERAJ MOR v. HON’BLE HIGH COURT OF DELHI 197 [ARUN MISHRA, J.]

14. We now turn to the other two respondents (Harbans Singh A 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 fulfilled the requirements of Art. 233 of the Constitution. Harbans Singh was in service of the State at the time of his appointment, and Mr B Viswanantha Sastri appearing for him has submitted that cl. (2) of Art. 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 cl.(2), we must hold that they fulfilled those requirements. They were Advocates enrolled in the Lahore High Court; this is not disputed. Under Cl. 6 of the High Courts (Punjab) Order, 1947, they were recognised as Advocates entitled to practise in the Punjab High Court till the Bar Councils Act, 1926, came into force. Under S.8 (2)(a) of that Act it was the duty of the High Court to prepare and maintain a roll of advocates in which their names should have been entered on the day on which S. 8 came into force, that is, on September 28, 1948. The proviso to sub-sec. (2) of S.8 required them to deposit a fee of Rs 10 payable to the Bar Council. Obviously such payment could hardly be made before the Bar Council was constituted. We do not agree with learned counsel for the appellant and the interveners (B.D. Pathak and E Om Dutt Sharma) that the proviso had the effect of taking away the right which these respondents had to come automatically on the roll of advocates under S. 8(2)(a) of the Act. We consider that the combined effect of Cl. 6 of the High Courts (Punjab) Order, 1947, and S. 8(2)(a) of the Bar Councils Act, 1926, was this: from August 15, 1947, to September 28,1948, they were recognised as Advocates entitled to practise in the Punjab High Court and after September 28, 1948, they automatically came on the roll of advocates of the Punjab High Court but had to pay a fee of Rs 10 to the Bar Council. They 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. They also had the necessary standing of seven years to be eligible under Cl.(2) of Art. 233 of the Constitution.” (emphasis supplied) H

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21Copy pinpoint21. Much was tried to be made based on the facts of Harbans Singh and P.R. Sawhney in the decision of Rameshwar Dayal (supra). Harbans Singh and P.R. Sawhney were having the following qualifications as noted in the judgment: “5. x x x B (2) Respondent 3 (Harbans Singh, J.) was also called to the Bar and then enrolled as an Advocate of the Lahore High Court on March 5, 1937. He worked as an Additional District and Sessions Judge, Ferozepore, from July 2, 1947, to February 22, 1948. He then returned to practice at Simla for a short while. On March 15, C 1948, he worked as Deputy Custodian, Evacuee Property, till April 17, 1950. On April 18, 1950, he was appointed as District and Sessions Judge and on August 11, 1958, he was appointed as an Additional Judge of the Punjab High Court. (5) Respondent 6 (P.R. Sawhney) was called to the Bar on D November 17, 1930, and was enrolled as an Advocate of the Lahore High Court on March 10, 1931. After partition he shifted to Delhi and worked for sometime as Legal Adviser to the Custodian, Evacuee Property, Delhi. Then he practised for sometime at Delhi; he then accepted service under the Ministry of Rehabilitation as an Officer on Special Duty and Administrator, E Rajpura Township. On March 30, 1949, he became the Chairman, Jullundur Improvement Trust. On May 6, 1949, he got his licence to practise as an Advocate suspended. On April 6, 1957, he was appointed as District and Sessions Judge.” Two of them were not in judicial service as on the date of their appointment; they had practised earlier for the requisite period as advocates and later were appointed as District & Sessions Judge. Harbans Singh was working as Deputy Custodian, Evacuee Property till 1950, when he was appointed as District & Sessions Judge. In 1958, he was appointed as an Additional Judge of the Punjab High Court. At the relevant time, when the appointments were made, recruitments were permissible from executive services too. Their eligibility to be appointed as District & Sessions Judge was tested. The question which came up for consideration was not whether they could have been appointed being in service of Custodian of Evacuee Property or the Improvement Trust. What was held by this Court concerning interpretation of Article 233 in the abovementioned para 12 of Rameshwar Dayal (supra), by a

DHEERAJ MOR v. HON’BLE HIGH COURT OF DELHI 199 [ARUN MISHRA, J.]

Constitution Bench of Court, goes squarely against the submissions raised on behalf of the in-service candidates.

22Copy pinpoint22. In Satya Narain Singh (supra), a similar question arose. The members of Uttar Pradesh Judicial Service applied for appointment by way of direct recruitment to the Uttar Pradesh Higher Judicial Service claiming that they had completed 7 years of practice at the Bar before their appointment to the Uttar Pradesh Judicial Service. Therefore, they were eligible to be appointed by direct recruitment to the Higher Judicial Service, i.e., to the post of District Judge. It was submitted that it would be extremely anomalous to interpret Article 233 in a way to render judicial officers eligible for appointment as a District Judge by direct recruitment. This Court rejected the submission and observed thus: C

“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 D or of the State”. We may mention here that “service of the Union or of the State” has been 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.” (emphasis supplied) H

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A This Court has relied upon Rameshwar Dayal (supra) and Chandra Mohan (supra) to hold: “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.” (emphasis supplied) The cases of Harbans Singh and Sawhney were considered and explained in the aforesaid decision. This Court relied upon the decision of Rameshwar Dayal (supra) to hold that as to a person not already in- service, a qualification is that he should be an advocate or pleader of seven years’ standing. The same clinches the issue against in-service candidates and negates their claim therefor.

23Copy pinpoint23. In Deepak Aggarwal (supra) a three-Judge Bench of this F Court considered the provisions of Article 233(2) and held that service in Article 233 to mean judicial service and there is dichotomy of sources of recruitment, namely, (i) from judicial service; and (ii) from the advocate/ pleader or in other words from the Bar. The meaning of the term advocate/pleader too has been considered by this Court. The expression “advocate” or “pleader” refers to the members of the Bar practicing G law. Relying upon Sushma Suri v. Govt. (NCT of Delhi), (1999) 1 SCC 330, this Court further observed that members of the Bar meant classes of persons who were practicing in a court of law as pleaders or advocates. This Court further held that in Article 233(2), “if he has been for not less than seven years,” the present perfect continuous tense is used for a position which began at some time in the past and is continuing. Therefore, H

DHEERAJ MOR v. HON’BLE HIGH COURT OF DELHI 201 [ARUN MISHRA, J.]

one of the essential requirements is that such a person must with requisite A period be continuing as an advocate on the date of application. This Court has observed: “70. A few decisions rendered by some of the High Courts on the point may also be noticed here. In Sudhakar Govindrao Deshpande v. State of Maharashtra, 1986 Lab IC 710 (Bom) B the issue that fell for consideration before the Bombay High Court was whether the petitioner therein who was serving as Deputy Registrar at the Nagpur Bench of the Bombay High Court, was eligible for appointment to the post of the District Judge. The advertisement that was issued by the High Court inviting applications for five posts of District Judges, inter alia, stated that, C “candidate must ordinarily be an advocate or pleader who has practised in the High Court, Bombay or court subordinate thereto for not less than seven years on 1-10-1980”. The Single Judge of the Bombay High Court considered Articles 233, 234 and 309 of the Constitution, relevant recruitment rules and noted the judgments D of this Court in Chandra Mohan v. State of U.P., AIR 1966 SC 1987, Satya Narain Singh v. High Court of Judicature of Allahabad, (1985) 1 SCC 225 and Rameshwar Dayal v. State of Punjab, AIR 1961 SC 816. It was observed as follows: (Sudhakar case, Lab IC p. 715, para 16) E “16. … the phrase ‘has been an advocate or a pleader’ must be interpreted as a person who has been immediately prior to his appointment a member of the Bar, that is to say either an advocate or a pleader. In fact, in the above judgment, the Supreme Court has repeatedly referred to the second group of persons eligible for appointment under Article 233(2) as F ‘members of the Bar’. Article 233(2) therefore, when it refers to a person who has been for not less than seven years an advocate or pleader refers to a member of the Bar who is of not less than seven years’ standing.”

89. We do not think there is any doubt about the meaning of the G 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 H

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A 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 v. Govt. (NCT of Delhi), B (1999) 1 SCC 330, a three-Judge Bench of this Court construed the expression “members of the Bar” to mean class of persons who were actually practising in courts of law as pleaders or advocates. …

102. As regards construction of the expression, “if he has been for not less than seven years an advocate” in Article 233(2) of the Constitution, we think Mr Prashant Bhushan was right in his submission that this expression means seven years as an advocate immediately preceding the application and not seven years any time in the past. This is clear by use of “has been”. The present perfect continuous tense is used for a position which began at sometime in the past and is still continuing. Therefore, one of the essential requirements articulated by the above expression in Article 233(2) is that such person must with requisite period be continuing as an advocate on the date of application.” E (emphasis supplied) It is clear from the decision of Deepak Aggarwal (supra) that recruitment from the Bar is only from among practicing advocates and those continuing as advocates on the date of appointment. The submission that the issue of eligibility of in-service candidates did not come up for consideration is of no consequence as provisions of Article 233(2) came up for consideration directly before this Court.

24Copy pinpoint24. The decision of Vijay Kumar Mishra and Anr. v. High Court of Judicature at Patna and Ors., (2016) 9 SCC 313, has also been referred in which judicial officers staked their claim as against the post reserved for the members of the Bar i.e., advocates/pleaders. The High Court repelled the challenge; hence appeal was filed in this Court. A two-Judge Bench of this Court observed that a person who is not in service shall be eligible to be appointed as a District Judge. After that, the bench distinguished between “selection” and “appointment.” It was observed that Article 233(2) prohibits the appointment of a person who is already in service of the Union or the State, but not selection of such

DHEERAJ MOR v. HON’BLE HIGH COURT OF DELHI 203 [ARUN MISHRA, J.]

a person. Even if a person, who is already in service, is selected, still he has an option to be a District Judge or continue with the existing employment. The relevant portion of the observations made is extracted hereunder: “6. Article 233(1) stipulates that appointment of District Judges be made by the Governor of the State in consultation with the B 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 described therein. It does not prescribe any qualification. It only prescribes a disqualification.

7. It is well settled in service law that there is a distinction between selection and appointment. Every person who is successful in the selection process undertaken by the State for the purpose of filling up of certain posts under the State does not acquire any right to be appointed automatically. Textually, Article 233(2) only prohibits the appointment of a person who is already in the service of the Union or the State, but not the selection of such a person. 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 Articles 14 and 16 of the Constitution.

8. The text of Article 233(2) only prohibits the appointment of a F person as a District Judge, if such person is already in the service of either the Union or the State. It does not prohibit the consideration of the candidature of a person who is in the service of the Union or the State. A person who is in the service of either the Union or the State would still have the option, if selected, to join the service as a District Judge or continue with his existing G employment. Compelling a person to resign from his job even for the purpose of assessing his suitability for appointment as a District Judge, in our opinion, is not permitted either by the text of Article 233(2) nor contemplated under the scheme of the Constitution as it would not serve any constitutionally desirable purpose. H