Recruitment of judicial officers as District Judges under bar quota | Day 2: Rules blocking in-service officers affects career progression, observes SC

Bhushan: Article 233(2) recognises appointment of both judicial officers and practicing advocates

Bhushan argued that Article 233(2) recognises two different sources of appointments in the district judiciary under the bar quota—from the judicial service and from the bar. He stated that a narrow construction of the provision would render it redundant and all words of the Article should be given effect. Quoting the provision, he stated that a person who is not “already in the service of the Union or the State” shall be eligible to be appointed as a district judge provided that they have practised as an advocate for not less than seven years. 

He argued that the provision should not be read to exclude judicial officers or else it’s first half would be rendered redundant. 

The Bench asked whether the seven-year requirement applied only to advocates not already in service. Bhushan confirmed that it did. However, he reiterated that the provision cannot wholly exclude judicial officers. Referring to the Indian Civil Services Act, 1861, he noted that the colonial government also recognised multiple streams of entry in the district judiciary.

Bhushan suggested that the Court should adopt a practical interpretation of Article 233(2). For instance, the experience of a judicial officer is combined with their experience as a practising advocate. He suggested that the Court could invoke its powers under Article 142 to provide for an aggregation of experience that would prevent the exclusion of judicial officers. CJI Gavai indicated openness to a workable solution that would allow recognition of combined experience. However, he warned that the Court could not “use a statutory provision to interpret a constitutional provision”.

Bhushan: Recruitment rules, promotion and institutional stakes

Bhushan argued that rules like the UP Higher Judicial Service Rules, 1975, restrict in-service civil judges for direct recruitment under the bar quota. He submitted that the Rules provide separate channels: promotion based on seniority or merit and direct recruitment of advocates with seven years’ practice. He stated that such exclusion leads to stagnation. This deprives the District Judiciary of experienced and high-quality officers, he added.

Justice M.M. Sundresh recounted that a promising law clerk had resigned due to limited career prospects. CJI Gavai added that many “brilliant candidates” leave the profession in two years and do not even reach up to the role of a principal district judge. Bhushan stressed that such a recruitment framework blocks upward mobility and consequently undermines the service itself. 

Datar: Continuity and the meaning of ‘seven years’

Datar appeared for a candidate who practised as an advocate for nine years before joining the service. He urged the Bench to closely examine the continuity requirement under Article 233(2). He relied on Deepak Aggarwal v Keshav Kaushik (2013) which held that the seven-year requirement was an unbroken period of advocacy immediately preceding the cut-off date for eligibility.

Datar explained that Dheeraj Mor v High Court of Delhi (2020) distinguished between advocates eligible for direct recruitment and judicial officers in service. This effectively excluded the latter from the advocate channel. He argued that the Judgement needed reconsideration as it narrowly construed Article 233(2) and added extra conditions not explicitly stated in the Constitution. 

He asked the Court to clarify whether the seven years must strictly be continuous practice as an advocate or whether years served in judicial service could be aggregated toward eligibility. Any interpretation that extends or modifies the seven-year requirement beyond continuous practice, he argued, demands careful judicial scrutiny to remain faithful to the Constitution’s intent.

Patwalia: “Has been” under Article 233(2) refers to past advocacy, not ongoing service

Patwalia argued that the phrase “has been” under Article 233(2) connotes a past state and not a continuing present state. Applying this principle to judicial appointments, he pointed out that counting years served as a judicial officer toward the seven-year requirement for advocates would conflate past and present practice and depart from the textual meaning intended by the framers. According to Patwalia, such a reading risks creating legal ambiguity and undermining the clear legislative intent to set a minimum period of continuous advocacy before eligibility for direct recruitment as a District Judge.

Patwalia illustrated his point with references to other statutes governing appointments to tribunals and quasi-judicial bodies, where similar phrasing—“has been a judge” or “has been an advocate”—consistently refers to completed past service rather than ongoing engagement.

Giri: High Court rules barring in-service judges from bar quota may violate equality principles

Giri submitted that the Article establishes two distinct sources of recruitment —one for judicial service officers and another for advocates —rather than reserving a proportion of posts exclusively for advocates.

Giri criticised the High Court rules that effectively bar in-service judicial officers from applying under the advocate stream. He argued that such exclusionary rules may violate Articles 14 and 16, as they impose an unjustifiable restriction on eligible candidates.

Justice Sundresh interjected during the submissions, observing that “one year of judgeship is equivalent to being five years as an advocate, in terms of sheer experience.”

Makhija: Restrictive rules prevent efficient staffing and use of experienced candidates

Makhija appeared for candidates who had practised as advocates for seven years, then entered judicial service through exams.

She submitted that the restriction leads to unfilled vacancies, which lead to structural inefficiencies in the District Judiciary. For instance, she pointed out that many High Courts have a low selection rate and sometimes only one out of 16 candidates is selected. She stressed that if judicial officers are excluded from the advocate stream, the service loses the opportunity to fill posts efficiently and leverage the experience of in-service candidates.

She explained that while some High Courts allow flexibility to shift between streams, others impose a strict prohibition. This prevents capable candidates from being considered under the advocate category.

Makhija argued that Dheeraj Mor made a grave error as it ignored the practical need to maintain a robust and fully staffed judiciary. She stated that there was a severe shortage of judges pointing out that there are only 21 judges for every 10 lakh people. 

The Bench will continue hearing the matter tomorrow.