Reservation for Civil Judges | Day 1: Petitioners claim inconsistent application of recruitment rules across High Courts

Bhatnagar: Age gap and seniority imbalance create disincentives in promotion structure

Reading from the reference order, Bhatnagar recalled that the Court had emphasised the need to “strike a proper balance between the competing claims” of both categories, as “every judicial officer, be it one who was initially recruited as a Civil Judge or one who was directly recruited as a District Judge, has an aspiration to reach at least up to the position of a High Court Judge.”

He said that the issue of disparity was first flagged by the First National Judicial Pay Commission, which was later reaffirmed in the Shetty Commission Report. “On average, promotees are always older than direct recruits.” He pointed out that promotee district judges in Andhra Pradesh entered the service at 48 years on average, as compared to 39 for direct recruits. Similarly, in Bihar promotees are aged 54 as against 41.

Justice Chandran observed, “In Kerala, now there are at least five High Court judges who were direct entry officers of this age group,” adding that in Bihar “it takes nearly 17 years for a Civil Judge to become a District Judge.”

Bhatnagar submitted that the average age of promotees may increase following the Court’s recent decision allowing judicial officers with prior bar experience to compete under the departmental route. Justice Surya Kant questioned the incentive structure of this system,  “Twenty-five percent quota [for  direct recruits] is meant as an incentive for the meritorious. Why should they compete for it if it is occupied only on the basis of length of service?” He added, “If you give so much incentive to seniority, our junior cadre will start working only for the exam.”

Turning to his proposals, Bhatnagar explained that under the current framework, 25 percent of District Judge posts are filled through direct recruitment and 75 percent through promotion. He suggested that if parity in seniority between direct recruits and promotees were to be maintained in a 1:1 ratio, it should be confined to the supertime scale (the highest level of the service). Extending such parity to all grades, he argued, would effectively consume the entire quota reserved for direct recruits.

Justice Joymalya Bagchi observed that “a District Judge’s experience is equal for both direct recruits and promotees,” and added that while merit is essential, upgradation is based on merit-cum-seniority, and the interpretation of Article 233 must not restrict the High Court’s powers under Article 235.

Bhatnagar suggested maintaining parity in the zone of consideration by ensuring that “for every 30 officers, 15 should be promotees and 15 direct recruits.” Justice Bagchi noted that such a formula could “create a cadre within a cadre,” stressing that “at the entry level, it is a common cadre.”

Bhatnagar concluded by citing data from several States showing that promotees continue to outnumber direct recruits. Justice Chandran noted that such data may now be dated, as “entry ages have come down drastically, many now join at 23, not 28, and reach the District Judge level by 35.”

Makhija: Direct recruits are favoured over promotees

 Makhija said her clients are “the grain sandwiched between two stones,” as the benefit intended for them “is not coming since High Courts treat us as part of the promotee group.”

She explained that while rosters are designed to alternate between streams, “direct promotees are almost always placed at number one,” resulting in an imbalance when successive selections again push direct recruits higher in the next roster. “The problem is not with the rule,” she said, “but the manner in which it is being applied.”

Citing Uttar Pradesh as an example, she noted that the roster was being implemented “on the basis of continuity of service and not cadre-wise, even though it is meant to be cadre-wise.” She also sought clarity on selections made after the 2002 amendments to the respective State Higher Judicial Service Rules, pursuant to All India Judges’ Association submitting that while the rules were amended prospectively, “the complaint remains that the amended provisions were not followed as intended.”

Makhija submitted, “Each alternative is a half measure, not a complete solution.” She argued that High Courts have framed rules on the basis of cadre and roster but “have not applied them consistently.” Justice Joymalya Bagchi observed that “the problem is not the methodology but its application.”

She asked the Bench to clarify “whether the quota is to be worked out on the basis of post or vacancy,” and urged that merit, which is “the basic criterion”, be meaningfully incentivised. “If I take the exam, clear it, and still remain at the same position in the promotee list, there is no incentive for me to better my skills,” she said, adding that in practice, “promotees who took the LDCE exam are actually coming lower in seniority rather than higher.”

Giri: Vacancies for direct recruits often delayed; seeks uniform seniority framework across High Courts

Giri submitted that seniority is central to postings within the Higher Judicial Service, including the selection of Principal District Judges. “Promotions generally follow seniority,” he said, though “ability and merit are also considered.”

He explained that the main issue is the assignment of seniority among judges, as direct recruitment “does not always take place annually,” often being delayed by litigation or procedural hurdles. As a result, “vacancies meant for direct recruitment in a particular year may actually be filled the next year,” he said, noting that “promotion vacancies are usually filled in time since eligible candidates are readily available.”

Giri warned against creating “a cadre within a cadre,” stating that “posting a person as a Principal District Judge or assigning seniority for higher functions must be done under statutory rules.” These, he said, stem from All India Judges’ Association v Union of India (2002) and Malik Mazhar Sultan v U.P. Public Service Commission (2006).

He suggested that limited weightage for long years of subordinate judicial service, 15 or 20 years, could be permissible “to ensure that the rich experience of promotee officers does not go unnoticed,” provided it fits within the statutory scheme.

He acknowledged that uniform implementation of the roster, formally introduced around 2020, “has not been possible across the country,” and that High Courts could be allowed limited discretion based on merit and suitability.

Comparative data, he said, showed that direct recruits are typically appointed at 35–37 years, while promotees reach the cadre around 48. He concluded that the post of Principal District Judge “is not specifically covered by the rules but requires administrative consideration by the High Court.”

All India Judges Association: Roster system has failed

Appearing for the All India Judges Association, counsel argued that All India Judges’ Association Judgement required limited reconsideration to permit weightage for promotee officers based on length of service, as recommended by the Shetty Commission.

She submitted that the roster system “has failed to bring parity among the three entry streams of promotion, LDCE, and direct recruitment.” In practice, “direct recruits dominate the senior echelons due to inherent age advantage,” while promotees “often discharge all the functions of Additional District Judges but remain phantoms for the purpose of seniority.”

She argued that “judicial experience is of greater value than experience at the Bar” and that promotees, already serving as judges, should not be placed below later entrants.

She proposed that seniority be reckoned from the date of vacancy and suitability, not formal appointment, and called for abolition of the roster system, which “presumes simultaneous completion of all three recruitment processes, something that rarely happens.”

On promotions from Civil Judge to ADJ, she said that “merit-cum-seniority” was being inconsistently applied, leading to officers declared suitable in one cycle being rejected in another. Referring to Malik Mazhar Sultan, she urged that “promotion cannot be denied unless the officer is found unsuitable,” calling for objective and uniform assessment criteria.

The Court will continue hearing the matter tomorrow.