R. Poornima and Ors. Vs. Union of India and Ors.
[Writ Petition (Civil) No. 1172 of 2019]
S. A. Bobde, CJI.
1. Persons who were appointed as District Judges (Entry Level) by way of direct recruitment vide a Government Order G.O. Ms. No. 170, Home Department dated 18.02.2011 in the Tamil Nadu State Judicial Service have come up with this Writ Petition seeking the following reliefs:
“(a) Issue a Writ in the nature of a Writ of Certiorarified Mandamus or any other appropriate Writ, Order or Orders, Directions, to call for records relating to the last list of names recommended by the Hon’ble Chief Justice of High Court of Madras to the Hon’ble Chief Justice of India for appointment as Judges of Madras High Court and quash the same in so far as it relates to the names of Respondents No. 5 to 23 herein and consequently direct the Hon’ble Collegiums of the Madras High Court to consider the names of the Petitioners also for appointment as High Court Judges; OR
(b) Issue a Writ in the nature of Writ of Mandamus or any other appropriate Writ, Order or Orders, Directions, directing the Respondents No. 1 to 4 to return the last list of names for appointment as Judges of High Court, Madras recommended by the Hon’ble Chief Justice of High Court of Madras to the Hon’ble Chief Justice of India; AND
(c) Pass such further or other Order or Orders that this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.”
2. On 06.12.2019, this Court issued notice restricted only to one question. The order passed on 06.12.2019 is selfexplanatory and hence it is reproduced as follows: “At the request of Shri Rakesh Dwivedi, learned senior counsel appearing on behalf of the petitioners, prayer ‘A’ is allowed to be deleted. Issue notice restricted to the question of the entitlement of the petitioners to be considered by virtue of having put in 18 years, as claimed. Dasti service, in addition, is permitted.”
3. We have heard the learned counsel for the parties.
4. The Petitioners as well as the Respondent Nos. 24 to 29 were duly selected and appointed as District Judges (Entry Level) by way of direct recruitment, vide a Government Order in G.O.Ms.No. 170, Home Department, dated 18.02.2011. Therefore, obviously, they have not completed 10 years of service as Judicial Officers, as on date. But at the time of their appointment as District Judges, the Petitioner Nos. 1 to 6had already practiced for more than 10 years as advocates, the Petitioner No. 7 had practiced as advocate for 9 years and 10 months and Petitioner No. 8 had practiced for 8 years and 6 months, after getting enrolled on the rolls of the Bar Council of Tamil Nadu and Puducherry.
5. In the cadre of District Judges, the Petitioners and Respondent Nos. 24 to 29 are the seniormost, as seen from the annual list of officers released by the High Court. The seniority of direct recruits like the Petitioners herein over the promotees, was also reinforced by the judgment of the Division Bench of the Madras High Court in Writ Petition No. 20069 of 2014, by judgment dated 26.02.2015.
6. The short grievance of the petitioners is that despite being the seniormost in the cadre of District Judges, they have been overlooked and their juniors now recommended for elevation to the High Court as Judges. This, according to the Petitioners, was done by the Collegium of the High Court solely on the application of Explanation (a) under Article 217(2) of the Constitution of India. The contention of the Petitioners is that to determine the eligibility of a person, subclauses (a) and (b) of clause (2) of Article 217 together with Explanations (a) and (aa) should be applied simultaneously.
7. In simple terms, the Petitioners want the experience gained by them as advocates to be clubbed together with the service rendered by them as Judicial Officers, for determining their eligibility. Once this clubbing is allowed, the Petitioners would like to take advantage of their settled seniority position in the cadre of District Judges, over and above that of Respondent Nos. 5 to 23. In other words, the Petitioners want the best of both worlds.
8. Before proceeding further, we must note that the Respondent Nos. 5 to 23 were appointed as Judicial Officers in the cadre below that of District Judges. After a long service, they have gained promotion to the post of District Judges. But their promotion happened after the date on which the petitioners were directly recruited as District Judges. This is how and why the petitioners became seniors to the respondents 5 to 23.
9. When vacancies arose for elevation to the High Court as Judges, as against the 1/3rd quota meant to be filled up from among the State Judicial Officers, the Collegium of the High Court found that the Petitioners had not completed 10 years of service in a Judicial Office as required by Article 217(2)(a). Therefore, the Collegium recommended the names of persons who fulfilled the eligibility criteria. Aggrieved by this action on the part of the Collegium of the High Court, the Petitioners have come up with this Writ Petition.
10. The contentions raised by the petitioners in the writ petition are little different from the submissions made by Mr. Rakesh Dwivedi, learned Senior Counsel for the petitioners. Let us first deal with the contentions raised in the writ petition.
11. In their pleadings, the Petitioners have pitched their claim on-
(i) a cumulative reading of subclauses (a) and (b) of clause (2) of Article 217 and Explanation (a) and (aa) thereunder;
(ii) the decision of this Court in P. Ramakrishnam Raju vs. Union of India1 wherein this Court directed the number of years of practice as advocate, to be added to the number of years of service rendered as a Judge of the High Court for determining the qualifying service for pensionary benefits, and
(iii) the reference made by a Division Bench of this Court to a 3member bench in Dheeraj Mor vs. Hon’ble High Court of Delhi2 of the question whether for the purposes of Article 233, the number of years of practice as an advocate can be clubbed together with the number of years of service as a Judicial Officer for determining the eligibility for direct recruitment to the post of District Judge.
12. At the outset, we shall point out that the ratio laid down in P. Ramakrishnam Raju has no application to the issue on hand. The said decision was rendered in the context of advocates elevated to the benches of the High Courts, not being appropriately compensated in terms of pensionary benefits, when they retire after less than 7 years/10 years/14 years of service. We cannot apply the same ratio while considering the eligibility of a person for appointment as a Judge of the High Court.
13. The reliance placed by the Writ Petitioners in Ground P of the Writ Petition on the reference made in Dheeraj Mor is of no use to them anymore. This is for the simple reason that by a judgment dated 19.02.2020, a 3member bench of this Court has answered the reference, in a way that will negate the argument of the Petitioners.
14. In Dheeraj Mor, three categories of persons came up with a claim for appointment to the post of District Judges by way of direct recruitment. They were,(i)those who had 7 years of practice as an advocate, but were serving in a judicial office on the date of application/appointment, (ii)those who had completed 7 years of service as Judicial Officers, but did not have 7 years of practice at the Bar, and (iii) those who wanted the number of years of practice as Advocate to be clubbed along with the number of years of service as a Judicial Officer, for the purpose of arriving at the eligibility criteria. After taking note of the diverse views expressed by different benches of this Court in earlier cases, a Division Bench of this Court passed an order on 23.01.2018 directing the matter to be placed before a larger bench.
15. The Petitioners herein filed the present Writ Petition in September 2019. On the date on which the Petitioners filed the Writ Petition and on the date on which the Writ Petition came up for hearing, namely 06.12.2019, the reference in Dheeraj Mor was still pending. The question was therefore at large on the date when this court ordered notice in the present writ petition.
16. But subsequently, the reference has been answered by a threemember bench of this court on 19.02.2020. The principles laid down by the three member bench, are as follows:
(i) For the purpose of Article 233(2), an advocate has to be continuing in practice for not less than 7 years as on the cutoff date and also at the time of appointment as District Judge. Members of Judicial Service having 7 years’ experience of practice before they joined the service or those having combined experience of 7 years as lawyer and member of judiciary, are not eligible to apply for direct recruitment as a District Judge, and
(ii) The decision in Vijay Kumar Mishra vs. High Court of Judicature at Patna3 upholding the eligibility of a Judicial Officer to apply for the post of District Judge by way of direct recruitment, does not lay down the law correctly and hence, overruled.
17. Therefore, for the purpose of Article 233, it is not permissible anymore, for people to hopon and hopoff between the two independent streams of recruitment, in the light of the law laid down in Dheeraj Mor. Hence the reliance placed by the Petitioners in their pleadings, on the reference pending at that time in Dheeraj Mor, has become irrelevant.
18. Though Dheeraj Mor was concerned with Article 233 of the Constitution, an analogy was drawn by S. Ravindra Bhat, J. in Paragraph 34 of his separate but concurring opinion in Dheeraj Mor, to Article 217 with which we are concerned in the present case. Paragraph 34 of the said opinion reads as follows: “34. 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) 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.”
19. Therefore, the very foundation upon which the Petitioners have built their case, at least in their pleadings, is now gone. But Mr. Rakesh Dwivedi, learned Senior Counsel for the petitioners contended –
(i) that while clause (1) of Article 217 prescribes the method of appointment and the age up to which an appointee can hold office, clause (2) merely stipulates the qualification for appointment and the method of computation of such qualification;
(ii) that the qualifications prescribed in subclauses (a) and (b) of clause (2) of Article 217 are in the alternative, but Article 217 does not create separate streams for appointment, with independent quotas for such streams;
(iii) that to interpret Explanation (a) in such a manner that only a person who resigned from Judicial service and became an Advocate will be eligible to club both the periods, will result in unfair and hostile discrimination of Judicial Officers, offending Article 14 and hence such an interpretation has to be avoided; and
(iv) that there are precedents where District Judges who had not completed 10 years of service, were appointed as Judges of High courts, by clubbing the number of years of practice they had at the bar, together with the number of years of service they put in judicial service.
20. Before we deal with the above submissions, let us take a look at Article 217(2) of the Constitution, which reads as follows: “(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and – (a) has for at least ten years held a judicial office in the territory of India; or (b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession;
Explanation.-For the purposes of this clause-
(a) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law; (aa) in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person [has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law] after he became an advocate;
(b) in computing the period during which a person has held judicial office in the territory of India or been an advocate of a High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947, within India as defined by the Government of India Act, 1935, or has been an advocate of any High Court in any such area, as the case may be.”
21. It is clear from the language of Article 217 that clause (1) merely prescribes the method of appointment and the age up to which an appointee can hold office. Clause (2) does two things. First it stipulates the qualification for appointment under the 2 subclauses (a) and (b). Then it stipulates the method of reckoning such qualification, under the 2 limbs of the Explanation.
22. Actually, clause (2) of Article 217 has 2 parts, the first of which is in subclauses (a) and (b) and the second in Explanation (a) and (aa). The first indicates in plain terms, that to be qualified for appointment, a person (i) must be a citizen of India and (ii) must have either held a judicial office for 10 years or been an Advocate of a high court for 10 years.
23. Suppose there was no ‘Explanation’ under clause (2) of Article 217, then there would have been no scope for any argument, other than to accept blindly, that the qualification stipulated in clause (2) of Article 217, can be acquired by an individual from 2 separate sources, namely (i) from the Bar or (ii) from the ‘judicial service’, as defined in clause (b) of Article 236. This is for the reason that Subclauses (a) and (b) are actually in the alternative, as can be seen from the use of the word “or” in between.
The word “or” in English grammar, according to Merriamwebster dictionary, is a coordinating conjunction. While the word “and”, which is also a conjunction, will denote something to be taken cumulatively, the word “or” will denote something to be taken alternatively. This is so far as the first part of clause (2) is concerned. As stated earlier, the first part of clause (2) is in subclauses (a) and (b).
24. The second part of clause (2) of Article 217, which has taken shape in the form of an ‘Explanation’, merely explains the manner in which the periods indicated in subclauses (a) and (b) are to be construed. Interestingly, the Explanation under clause (2) of Article 217 also has 2 parts, one going with subclause (a) and another going with subclause (b).
25. Explanation (a) goes with subclause (a) and Explanation (aa) goes with subclause (b). This is because, Explanation (a) permits the addition, to the number of years of service of a Judicial Officer, some other period also, namely (i) the period during which a person has been an advocate of a High Court, or (ii) the period during which a person has held the office of a member of a Tribunal. Similarly, Explanation (aa) permits the addition, to the number of years during which a person has been an advocate of a High court, some other period, namely the period during which he has held any judicial office or the office of a member of a Tribunal.
26. According to Explanation (a), the period of service rendered by a person in a judicial office has to be computed by taking into account the period during which he has been an advocate of a high court.
27. But the condition for such addition of some other period, under Explanation (a) is that such other period should have followed and not preceded the judicial service. This is made clear by the use of the words “after he has held any judicial office”.
28. What is sought by the petitioners herein is to club with their judicial service, the experience that they had at the Bar before joining judicial service. In other words, the petitioners want the word “after” to be interpreted to mean and include “before”. We do not know of any rule of interpretation which permits the word “after” to be interpreted to mean and include “before”.
29. The telescoping of Explanation (a) and (aa) into subclauses (a) and (b) of clause (2) of Article 217 would show that a person may acquire the eligibility as indicated in Article 217(2)( i) either exclusively from the Bar [as provided in clause (b)] (ii) or exclusively from the judicial service [as provided in clause (a)] (iii) or from a cocktail of both [as provided in Explanation (a) and (aa)]
30. But what is important to note is that Article 217(2) merely prescribes the eligibility criteria and the method of computation of the same. If a person is found to have satisfied the eligibility criteria, then he must take his place in one of the queues. There are 2 separate queues, one from judicial service and another from the Bar. One cannot stand in one queue by virtue of his status on the date of consideration of his name for elevation and at the same time keep a towel in the other queue, so that he can claim to be within the zone of consideration from either of the two or from a combination of both.
31. The queue to which a person is assigned, depends upon his status on the date of consideration. If a person is an advocate on the date of consideration, he can take his place only in the queue meant for members of the Bar. Similarly, if a person is a judicial officer on the date of consideration, he shall take his chance only in the queue meant for service candidates.
32. Hopping on and hopping off from one queue to the other, is not permissible. Today, if any of the petitioners cease to be Judicial Officers and become Advocates, they may be eligible to be considered against the quota intended for the Bar. But while continuing as Judicial Officers, they cannot seek to invoke Explanation (a) as it applies only to those who have become advocates after having held a judicial office.
33. The issue can be looked at from another angle also. The petitioners successfully claimed and gained seniority over and above the contesting respondents, on the ground that they were directly recruited to the post of District Judges, before the contesting respondents got promoted as District Judges.
In other words, for the purpose of seniority, the petitioners went solely by the date of recruitment to the cadre of District Judges and not (i) by the total length of service in a judicial office or (ii) by a combination of the number of years of practice at the bar and the number of years of judicial service. But for the purpose of determining the eligibility, they want to go by the total period of practice as an Advocate and the period of service in a judicial office. If clubbing is permitted, it should be permitted even for the contesting respondents, which if done, would upset even the seniority of the petitioners.
34. Though Mr. Rakesh Dwivedi, learned Senior Counsel submitted that his clients cannot have any objection to the benefit of clubbing being granted even to the contesting respondents, we think it is an argument of convenience. For filling up the vacancies under the service quota, the collegiums of the High courts consider the ACRs and the judgments of the judicial officers, in the ratio of 1:3 or 1:5 or so. To undertake this exercise, the High courts maintain seniority lists of judicial officers. If there are 3 vacancies to be filled up, the profile of 9 or 15 seniormost officers are considered.
If the argument of the petitioners is accepted and the contesting respondents are also granted the benefit of clubbing, they will be far seniors to the petitioners in terms of the total number of years of service both at the bar and in service. In such an event, the petitioners will not come anywhere near the zone of consideration (within the first 9 or 15). In every State, hundreds of judicial officers will satisfy the qualifying criteria, if the argument of the petitioners is accepted. Take for instance a case where a person is appointed as a District Judge after 10 years of practice at the Bar.
If the contention of the petitioners is accepted, even such a person will be eligible from day one of his appointment as District Judge. Since all such persons cannot be considered for the limited number of vacancies, a seniority list is maintained and a particular number of officers are taken in the zone of consideration, depending upon the number of vacancies sought to be filled up under the quota. The cache in the argument of the petitioners is that for the purpose of seniority, they do not want any two services to be clubbed, but for the purpose of eligibility, they want even the practice at the Bar to be clubbed. This is nothing but a selfserving argument.
35. As pointed out earlier, the petitioners were appointed in February 2011. They will be completing 10 years of service in a judicial office by February 2021. This is why, when this court ordered notice in this writ petition on 06.12.2019, they have agreed to delete prayer A and confine themselves to prayer B, which is just for returning the list of names recommended by the collegium of the Madras High court.
Perhaps the petitioners have gained an impression that if the list of names already recommended is returned and the matter is taken up afresh after February 2021, they would have by then become eligible in terms of subclause (a) of clause (2) of Article 217 and at that time they can claim the benefit of seniority over and above the contesting respondents.
36. Referring to the discussions that took place in the Drafting Committee of the Constitution, on the amendments proposed to the Draft of Article 193(2)(b) of the Constitution, which corresponds to the present Article 217(2)(b), for the insertion of the words “and is” and the rejection of the said suggestion by the Drafting Committee, it is contended by the learned Senior Counsel for the petitioners that in the light of the same, this Court cannot interpret Article 217(2)(b) in a manner restricting it to “practising advocates”.
The relevant portion of the “Comments and Suggestions on the Draft Constitution”, from Volume 4 of the “Framing of the Indian Constitution”, relied upon by the learned counsel for the petitioners reads as follows:” The Editor of the Indian Law Review and some other members of the Calcutta Bar have suggested that in subclause (b) of clause (2) of article 193, after the word “years” the words “and is” should be inserted.
Note : This amendment seeks to restrict the recruitment of High Court judges under subclause (b) of clause (2) of article 193 only to practising lawyers. If this amendment is accepted then a person who has served as a district judge for seven or eight years and has also practised as an advocate of a High Court for seven or eight years before being a district judge will not be eligible to be appointed as a High Court judge whereas a member of the Provincial Judicial Service who has served as a ‘munsif’ for only ten years will be eligible to be so appointed, which is certainly anomalous. This amendment cannot therefore be accepted.”
37. On the basis of the above it is contended that Article 217(2)(b) cannot be restricted to mean only those practising as advocates on the date of consideration.
38. But the above argument loses sight of the fact that Article 217(2)(b) relates to the stream of advocates. When it comes to such a stream, Explanation (aa) comes into play. Therefore, the reference to the discussions in the Drafting Committee is of no relevance.
39. As a matter of fact, the present Explanation (a) was inserted only by the Constitution (44th Amendment) Act, 1978 with effect from 20.06.1979. What was Explanation (a) till then, became Explanation (aa) by the same Amendment. Therefore, the benefit of the present Explanation (a) was not even available to judicial officers until 20.06.1979.
40. Reliance is placed by the learned counsel for the petitioners upon the decision of this Court in Mahesh Chandra Gupta vs. Union of India4, and the decision of the Delhi High court in D.K. Sharma vs Union of India5 in support of his contention that the entitlement to practise as an advocate was sufficient to satisfy the criteria under Article 217(2) and that the provision does not contemplate actual practice.
41. But both those decisions arose out of a challenge to the appointment of members of the Income Tax Appellate Tribunal as Judges of the High courts. These decisions cannot apply to the case of a person holding a judicial office. Mahesh Chandra Gupta (supra) was a case where the appointment of a Member of the Income Tax Appellate Tribunal as an Additional Judge of the Allahabad High Court was under challenge.
As seen from Para 38 of the Report, what fell for consideration of this Court in the said case was “whether actual practise as against the right to practise is a prerequisite constitutional requirement of the eligibility criteria under Article 217(2)(b)”. Subclause (b) of Clause (2) of Article 217 prescribes the number of years a person should have been an Advocate to become eligible for consideration.
Therefore, if the petitioners want to be considered from the category as advocates, irrespective of their present status as judicial officers, they can always do so, provided they do not stand in the queue intended for judicial officers. The case of the petitioners, as on date falls under Article 217(2)(a) and not Article 217(2)(b). Hence, Mahesh Chandra Gupta (supra) will not come to their rescue. The judgment of the Delhi High court in D.K. Sharma followed the ratio in Mahesh Chandra Gupta.
42. It is relevant to note that the expression “judicial office” appearing in Article 217(2)(a) was interpreted in Shri Kumar Padma Prasad vs. Union of India6 only to mean a judicial office belonging to the judicial service defined in Article 236(b). Therefore, the case of a Member of Income Tax Appellate Tribunal could not have fallen within the ambit of Article 217(2)(a). This is why the decision in Mahesh Chandra Gupta (supra) was rendered in the context of Article 217(2)(b) and not Article 217(2)(a).
43. The words “has held” and the words “has been” appear repeatedly in subclauses (a) and (b) as well as Explanation (a) and (aa) under Article 217(2). In relation to a person from the category of judicial service, subclause (a) uses the words “has held”. But in relation to a person from the category of advocate, subclause (b) uses the words “has been”. This is quite relevant for the reason that even in Explanation (a) and (aa) the words “has held” always preceded the words “judicial office” and the words “has been” always preceded the word “advocate”.
44. In common parlance, the words “has held” stand in contra distinction to the words “is holding” or “has been holding”.
45. On the other hand the words “has been” do not have any such connotation. The Cambridge Dictionary states that the words “has been” are in present perfect continuous form. The Dictionary says that we may use the present perfect continuous, either to talk about a finished activity in the recent past or to talk about a single activity that began at a point in the past and is still continuing. Keeping this in mind, Explanation (a) confers the benefit of clubbing to a limited extent, to a person who has held a Judicial Office. To be eligible for the limited benefit so conferred, a person should have been an Advocate “after he has held any judicial office”. There is no confusion either in the language of Article 217(2) or in our mind.
46. The argument that it will be discriminatory to allow the benefit of clubbing only to a person who held a judicial office and later became an advocate, does not appeal to us. In fact, Article 217(2) does not guarantee any one with the right to be appointed as a judge of the High Court. In a way, a person holding a judicial office is better placed, as he is assured of a career progression (though in a limited sense) after being placed in something like a conveyor belt. There is no such assurance for an advocate. Therefore, the argument based upon Article 14 does not impress us.
47. It was also contended that a few persons whose names are mentioned in Paragraph 16 of the Writ Petition, got appointed to the High Court without completing 10 years of service as District Judges. But we do not know whether they got so appointed by clubbing the number of years of practise at the Bar. The factual situation that prevailed in those cases is not available. In any case a majority of those whose names are mentioned in Para 16 of the Writ Petition, got appointed to the High Court before Constitution (44th Amendment) Act, 1978. Therefore, we do know what was done in those cases.
48. Therefore, in fine, we are of the considered view that the claim of the writ petitioners is wholly untenable and the writ petition is misconceived. Hence, the writ petition is dismissed. There will be no order as to costs.
………………………….CJI. (S.A. Bobde)
……………………………J. (A.S. Bopanna)
……………………………J. (V. Ramasubramanian)
September 04, 2020
1 (2014) 12 SCC 1
2 (2018) 4 SCC 619
3 (2016) 9 SCC 313
4 (2009) 8 SCC 273
5 2011 SCC Online Del 1773
6 (1992) 2 SCC 428)