The Supreme Court on Wednesday held that members of lower judiciary like magistrates and civil judges are not eligible for direct recruitment to posts of district judges, a route meant exclusively for advocates having seven years continued practice.
The top court directed that judicial officers, who have been appointed as district judges through direct recruitment during the pendency of the petition in this connection, will have to revert to their original posts.
It, however, said that magistrates and civil judges can be promoted on merit and seniority basis or appointed through limited competitive examination for the post of district judge.
The top court held that members of judicial service having seven years' experience of practice before they have joined the service or having combined experience of seven years as lawyer and member of judiciary will not be eligible to apply for direct recruitment as district judge.
A bench of justices Arun Mishra, Vineet Saran and S Ravindra Bhat unanimously interpreted Article 233 of the Constitution which deals with the appointment of district judges.
"We are of the opinion that for direct recruitment as district judge as against the quota fixed for the advocates/pleaders, incumbent has to be practising advocate and must be in practice as on the cut-off date and at the time of appointment he must not be in judicial service or other services of the Union or State," the bench said.
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Article 233 sub clause 2 states that a person who is already in the service of the Union or of the State shall not be eligible to be appointed as a district judge.
The provision also says that a person to be eligible for the post of district judge should have not less than seven years of practice as an advocate or a pleader and is recommended by the high court for appointment.
The bench clarified that for constituting experience of seven years of practice as advocate, experience obtained in judicial service cannot be equated or combined.
"Advocates should be in practice in the immediate past for seven years and must be in practice while applying on the cut-off date fixed under the rules and should be in practice as an advocate on the date of appointment. The purpose is recruitment from bar of a practising advocate having minimum seven year's experience," the top court said.
In its 84-page verdict penned by Justice Mishra, the bench said, "The rules framed by the high court prohibiting judicial service officers from staking claim to the post of district judge against the posts reserved for advocates by way of direct recruitment, cannot be said to be ultra vires and are in conformity with Articles 14, 16 and 233 of the Constitution of India".
It said that the governor of a state is the authority for the purpose of appointment, promotion, posting and transfer, the eligibility is governed by the rules framed under Articles 234 and 235 of the Constitution.
The top court overruled a Patna High Court verdict of 2016 which allowed the in-service judicial officers to compete with the lawyers for post of district judge saying the law was not laid down correctly.
It said that during the pendency of batch of pleas filed by various lower judiciary officers several interim orders were passed time to time and they were permitted to appear in the examination for post of district judges.
"In the cases where such in-service incumbents have been appointed by way of direct recruitment from bar as we find no merit in the petitions and due to dismissal of the writ petitions filed by the judicial officers, as sequel no fruits can be ripened on the basis of selection without eligibility, they cannot continue as district judges. They have to be reverted to their original post," it said.
The top court added that the lower judiciary officers cannot claim any right on the basis of such an appointment obtained under interim order, which was subject to the outcome of the writ petition and they have to be reverted.
"Opportunities are provided not only to in-service candidates but also to practising candidates by the constitutional scheme to excel and to achieve what they aspire i.e. appointment as district judge. However, when someone joins a particular stream, i.e. a judicial service by his own volition, he cannot sail in two boats," the bench said.
Justice Bhat, concurred with the findings of justices Mishra and Saran but gave his separate reasoning in the matter.
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