Judgments

DHEERAJ MOR VS HON’BLE HIGH COURT OF DELHI : CASE SUMMARY

The Supreme Court has held in Dheeraj Mor Vs Union of India (2020) 7 SCC 401 that advocates in practice for seven years or more are only eligible to participate in direct recruitment for posts of District Judges under Article 233 (2).

FACTS OF THE CASE

Several petitions have been filed before the Supreme Courts challenging High Court rules making judicial officers ineligible for direct recruitment to post of District Judge . Some petitioners were those who had completed practice of seven years before becoming a judicial officer, some petitioners were those who had completed seven years as judicial officers and some petitioners were those who had completed seven years as advocates and judicial officers. These matters were referred to Constitution Bench.

FINDINGS OF THE SUPREME COURT

The Supreme Court noted that there are two distinct streams for recruitment to posts of District Judge. Article 233 (1) provides for appointment of judges by way of posting and promotion.   Article 233 (2) provides for appointment of an advocate or pleader in practice for more than seven years. Such advocate or pleader must not be in service of State or Union.

The Supreme Court noted that Chandra Mohan Vs State of UP (1967) 1 SCR 77 recognizes two streams of recruitment.  It was held that under Article 233 (1) in service judicial officers can be appointed as District Judge. On the other hand under Article 233 (2) advocates can be only appointed by the Governor as District Judges on recommendation of High Court.

The Supreme Court in Rameshwar Dayal Vs State of Punjab AIR 1961 SC816 observed that Article 233 is a self-contained code regarding appointment of District Judges. As to a person who is already in service of State or Union can be appointed by Governor as District Judge under Article 233 (1). Under Article 233 (2) all that is required is that a candidate should be an advocate or pleader of seven years standing and such candidate should not be in service of State or Union.

In case of Satya Narayan Singh Vs High Court of Judicature at Allahabad (1985 ) 1 SCC 225 , the petitioner has completed seven years of practice before entering into judicial service. The Petitioner applied for appointment for post of District Judge by direct recruitment. The Supreme Court held that a member of judicial service cannot be directly recruited under Article 233 (2) of the Constitution.

The Supreme Court overruled decision in Vijay Kumar Mishra Vs High Court of Judicature at Patna (2016 ) 9 SCC 313 wherein it has been observed that Article 233 (2) does not bar the a member of judicial service to participate in selection for  post of District Judge. A judicial officer after being successful in selection process  will have option to continue with his employment or join post of District Judge.

A member of judicial service is eligible to be appointed as District Judge but by way of promotion based on seniority or merit, which concept has been evolved in All India Judges Association Vs Union of India (2002) 4SCC 247. The Supreme Court accepted the recommendation of Shetty Commission wherein it was recommended that 75% of positions of District Judges will be filled by promotion among judicial officers  and 25% will be filed by direct recruitment on the basis of competitive examination consisting of written examination and viva voce.

The Supreme Court concluded that members of judicial service can be appointed as District Judges by way or promotion or limited competitive examination. Under Article 233 (2) an advocate or a pleader can be appointed as District Judge by way of direct recruitment, in case he is not already in judicial service of Union or State. Members of judicial service having 7 years  experience prior to joining judicial service or hybrid 7 years  experience as an advocate and judge  are not eligible for participating in direct recruitment of District Judge.  Rules framed by High Court prohibiting judicial service officers from participating in direct recruitment for seats reserved for advocates are not ultra vires to the constitution and are in conformity with Article 14, 16 and 233 of the Constitution of India.

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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

Mukesh Kumar Suman

Mukesh Kumar Suman

Mukesh Kumar Suman is an advocate based at Delhi. He has rich experience in civil, criminal, commercial, arbitration and corporate insolvency matters. He regularly appears before District Courts, NCLT, NCLAT, High Court and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

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