Recruitment of Judicial Officers as District Judges | Day 4: Supreme Court reserves judgement

Gupta: Article 233(2) does not deal with the appointments of in-service officers

Resuming his submissions, Senior Advocate Nidesh Gupta relied on Rameshwar Dayal v State of Punjab (1960) and Chandra Mohan v State of Uttar Pradesh (1966) to argue that Article 233(2) provides for a separate stream of recruitment only for practising advocates and excludes in-service officers. He warned against an aggregation of years spent as an advocate and in-service as a consideration for direct recruitment.

In the previous hearing, petitioners had relied on Article 217(2) to argue that years spent in judicial service should not be a factor to disqualify appointment under the bar quota. The provision concerns the appointment of judges to the High Courts. According to them, if experience as an advocate and a judge is considered for High Court appointments, it should be considered for District Judge appointments too. 

Gupta rejected this comparison, arguing that relying on Article 217 to widen the scope of Article 233 was never intended by framers of the Constitution. He pointed out that “a person could practise for three years, become a Civil Judge, and the very next day sit for the District Judge examination. Because there is no minimum age explicitly mentioned in the Constitution”. He insisted that there can only be two distinct streams under the constitutional scheme—promotion of in-service officers under Article 233(1) and direct recruitment under Article 233(2). He added that Article 233(1) deals with “consultation” for appointments by promotion and Article 233(2) deals with recommendation of advocates by the High Courts. 

CJI Gavai and Justice M.M. Sundresh noted that clause (1) of Article 233 speaks of appointment of district judges by the Governor. Gupta replied that Article 233(2) spoke of appointments as well, but with a clear exclusion of those already in service. “If 233(2) is not exclusively for an advocate with seven years’ practice,” he stressed, “then we are reading into 233(2) something which is not there. It does not say ‘in-service’.”

Justice Sundresh pointed out that petitioners were urging both clauses to be read together. Gupta warned that Rameshwar Dayal had already held that Article 233 was a “code in itself” and that reopening it would be impermissible. CJI Gavai asked, “Your submission is that 233(2) is exclusively meant for an advocate who has seven years’ practice?” Gupta answered in the affirmative, maintaining that any broader interpretation would amount to judicial rewriting.

Gupta then argued that Chandra Mohan interpreted Rameshwar Dayal only on the premise that those in-service continued to be advocates as per the Advocates Act, 1961. “It was not based on their being in service,” he said. Gupta insisted that the decision could not be stretched to bring in-service candidates within Article 233(2). CJI Gavai observed that Rameshwar Dayal nowhere barred in-service candidates from applying under the bar quota and only mandated seven years of practice. Gupta repeated that any other interpretation would be to prescribe qualifications and explanations absent from the constitutional text.

Hansaria: High Courts have power to frame statutorily rules for District Judge appointments as they deem fit

Senior Advocate Vijay Hansaria, appearing for the Gujarat High Court, argued that distinct constitutional schemes for appointments to the Supreme Court (Article 124), High Courts (Article 217) and District Courts (Article 233) cannot be intermingled. 

Hansaria submitted that Article 233(1) and (2) do not provide qualifications for District Judges, leaving it to the High Court’s to frame them. He argued that an in-service officer could claim that his rights were violated if a High Court determined a percentage of seats for advocates and for judicial officers.

Justice Sundresh countered that there are two established modes: promotion for in-service officers and direct recruitment for advocates. “The question,” he said, “is whether there is any express prohibition. If there is not, then merely because no qualification is prescribed for judicial officers in direct recruitment, it cannot be said that Article 233 was only made for lawyers.”

Hansaria maintained that in the absence of a constitutional bar, the matter should be left to the High Courts. CJI Gavai stressed that where rules framed under Article 309 provide quotas, “this Court, while interpreting Article 233, should give due weightage to the rules framed by the High Courts.”

Justice Sundresh clarified that the Bench was presently only on the issue of eligibility, not reservation. “It will be too dangerous for us to hold that those in service previously will not be eligible to hold the District Judge post,” he said. “You have to ensure that the bottom is of the same quality. In a multi-hierarchical structure like ours, there are different layers of scrutiny. If we ensure quality at the bottom, it will attract the best of the legal minds. At that stage, we hope to facilitate what the Constitution mandates.” He urged moving beyond a judge-centric or lawyer-centric approach. He said, “It should be litigant-centric. You treat justice dispensation like a commodity. Therefore, we have to attract the best of the talent.”

Hansaria concluded by reiterating that primacy must rest with the High Courts. Under Article 234, both the Public Service Commission and the High Court play a role in appointments of junior officers, but under Article 233, he stressed, “the High Court is the sole decision-making authority.”

High Courts get a say 

After the lunch break, several counsel provided rapid fire submissions on behalf of the High Courts of Madhya Pradesh, Bombay and Delhi. The High Courts were on the same page when it came to recruitment—Article 233(2) does not deal with the appointment of in-service officers. 

Continuing Hansaria’s arguments, Advocate Kavya Jhawar argued that the usage of the phrase “has been for not less than seven years an advocate” connotes a continuing role and not something that has happened in the past. Therefore, a person who used to be an advocate before their service is not eligible. She referred to the phrase “A person not already in the service” in the provision to buttress her point. 

A counsel then pressed for a plain reading of the constitutional provision stating that an aggregation of past practice would violate the text. Subsequently, another counsel submitted that an interpretation to include in-service candidates would require a constitutional amendment, which the Court cannot do so. He added that any advocate should be a practising advocate on the date of application. 

This point was elevated by another counsel who stated that a third avenue of appointment of in-service candidates under the bar quota would be a “disruptor”. An accompanying counsel recommended the establishment of a new commission, with different quotas if such an avenue was being considered. 

The Bench was quick to point out that the distinction between in-service and bar appointments was not originally in the Constitution and was developed judicially. To this, the counsel for Madhya Pradesh argued that Dheeraj Mor v High Court of Delhi (2020) stated that “there cannot be hopping from one stream to another” and therefore the distinction was recognised. Moreover, all counsel also warned that any interpretation would violate the principle of “stare decisis”. 

Bhushan: Principal of stare decisis need not be strictly applied

Bhushan led the rejoinder arguments for the petitioners. He submitted that Article 233 was a “complete code” and cannot have conditions that do not exist i.e. distinguishing in-service and bar appointments. 

Arguing on the respondents reliance on Rameshwar Dayal, Bhushan stated that the judgement made it clear that the condition of being an advocate for seven years did not apply for in-service candidates. 

On the aspect of stare decisis, Bhushan relied on Property Owners Association v State of Maharashtra (2024), to argue that stare decisis was not an “inflexible rule of law” and Courts can review its past decisions. He submitted that the observations of the Court in Property Owners Association would “squarely apply” to the petitioners’ case. 

Lastly, Bhushan highlighted that there is no distinction between “consultation” and “recommendation”. He stated that it cannot be said that Article 233(1) only deals with promotion of in-service candidates and clause (2) is concerned only with appointment of advocates.

The Court reserved judgement in the case.