11. WHETHER THE LOWER JUDICIAL SERVICE PERSONNEL COULD BE MADE ELIGIBLE FOR DIRECT RECRUITMENT TO THE POST OF DISTRICT JUDGES ?

11.1 The Constitution, as it stands, does not provide for consideration of persons who are already in judicial service for direct recruitment to the cadre of District Judges.

11.2 Article 233 is as follows:

"233 (1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.

"(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment."

11.3 The scope of this Article has come up for consideration before the Supreme Court in the following cases:

In RAMESHWAR DAYAL v. STATE OF PUNJAB1 , S.K. Das J. observed: (at p.822)

". . . . . . . . . . . Article 233 is a self contained provision regarding the appointment of District Judges. As to a person who is already in the service of the Union or of the State, no special qualifications are laid down and under cl. (1), the Governor can appoint such a person as a District Judge in consultation with the relevant High Court. As to a person not already in service, a


1. AIR 1961 SC 816.

qualification is laid down in cl. (2) and all that is required is that he should be an advocate or pleader of seven years’ standing."

In CHANDRA MOHAN v. STATE OF UTTAR PRADESH2, Subba Rao, C.J. after referring to Article 233, 234, 235, 236 and 237 stated: (at p.1993)

"The gist of the said provisions may be stated thus: Appointments of persons to be, and the posting and promotion of, District Judges in any State shall be made by the Governor of the State. There are two sources of recruitment, namely, (i) service of the Union or of the State, and (ii) members of the Bar. The said judges from the first source are appointed in consultation with the High Court and those from the second source are appointed on the recommendation of the High Court. But in the case of appointments of persons to the judicial service other than as District Judges, they will be made by the Governor of the State in accordance with rules framed by him in consultation with the High Court and the Public Service Commission. But the High Court has control over all the district courts and courts subordinate thereto, subject to certain prescribed limitations."

11.4 Subba Rao, C.J., then proceeded to consider whether the Government could appoint as District Judges persons from services other than the judicial service. After pointing out that Art. 233(1) was a declaration of the general power of the Governor in the matter of appointment of District Judges and it did not lay down the qualifications of the candidates to be appointed or denoted the sources from which the recruitment had to be made, he proceeded to state,

 


2. AIR 1966 SC 1987.

"But the sources of recruitment are indicated in cl. (2) thereof. Under cl.(2) of Art.233 two sources are given, namely, (i) person in the service of the Union or of the State, and

(ii) Advocate or Pleader."

11.5 Posing the question whether the expression "the service of the Union or of the State" meant any service of the Union or of the State or whether it meant the judicial service of the Union or of the State, the learned Chief Justice emphatically held that the expression "the service" in Art. 233(2) could only mean the judicial service.

11.6 In SATYA NARAIN SINGH v. HIGH COURT OF JUDICATURE AT ALLAHABAD3, CHINNAPPA REDDY J. observed:

" Two points straightaway project themselves when the two clauses of Art. 233 are read:

The first clause deals with ‘appointments of persons to be, and the posting and promotion of, District Judges in any State’ while the second clause is confined in its application to persons ‘not already in the service of the Union or of the State’. We may mention here that ‘Service of the Union or of the State’ has been interpreted by this Court to mean judicial service. Again while the first clause makes consultation by the Governor of the State with the High Court necessary, the second clause requires that the High Court must recommend a person for appointment as a District Judge. It is only in respect of persons covered by the second clause that there is a requirement that a person shall be eligible for appointment as District Judge if he has been an advocate or a pleader for not less than 7 years. In other words, in the case of candidates who are not members of a Judicial Service they must have been advocates or pleaders for not less than 7 years and they have to be recommended by the High Court before they may be appointed as District Judges, while in the case of candidates who are


3. AIR 1985 SC 308.

 

members of a Judicial Service the 7 years rule has no application but there has to be consultation with the High Court. A clear distinction is made between the two sources of recruitment and the dichotomy is maintained. The two streams are separate until they come together by appointment. Obviously the same ship cannot sail both the streams simultaneously."

11.7 The grievance of Service Judges however, is that they are unjustly denied of an opportunity to compete for direct Recruitment to District Judge posts, when similar facility is provided in other Administrative services.

11.8 The Commission, with a view to ascertain the views and comments from all concerned in this regard, included the following questions in the general Questionnaire:

Q.No.8.3 :

Do you think that the officers in the lower judicial service should be allowed to compete for direct recruitment to the District Judge cadre?

If so, what should be the experience in service for such Officers and how Article 233 of the Constitution of India should be amended? Explanation (aa) to Sub-Article (2) of Article 217 may be noted in this context.

Q.No.8.4 :

Has any weightage been given in your State / UT in terms of increments and / or retirement benefits for direct recruits to the cadre of District Judges who possess more than the minimum number of years of practice at the Bar?

 

11.9 Responses received from the High Courts, Governments and Judicial Officers’ Associations and individuals are not uniform. They are briefly summarised herein below:

HIGH COURTS :

11.10 High Courts of Patna , Jammu & Kashmir, Bombay , Orissa, Punjab & Haryana , Sikkim , Allahabad and Calcutta are in favour of allowing the officers in the Lower Judicial Service to compete for direct recruitment of District Judges.

11.11 But, High Courts of Andhra Pradesh, Guwahati, Delhi , Himachal Pradesh, Karnataka, Kerala, Gujarat, Madhya Pradesh, Rajasthan and Madras are against the proposal.

GOVERNMENTS :

11.12 Governments of Andhra Pradesh, Karnataka, Maharashtra, Tripura, Meghalaya and Gujarat want that the Officers of the Lower Judicial Service should be given an opportunity for direct recruitment of District Judges.

11.13 But, Kerala, Tamilnadu and Nagaland Governments are against any such move.

11.14 Sikkim Government wants that the posts of District Judges should be filled up only by promotion and not by direct recruitment.

11.15 In West Bengal , there is no direct recruitment for the present, but wants to reconsider the question.

SERVICE ASSOCIATIONS :

11.16 The Judicial Officers / Service Associations of Andhra Pradesh, Bihar, Delhi, Gujarat, Jammu & Kashmir, Kerala, Orissa, West Bengal, Kerala Magistrates (Judicial) Association, Haryana Civil Judges’ Association, Haryana State Judges’ Association, Judges of the City Civil and Sessions Court, Mumbai plead for an opportunity to the Lower Judicial Service for direct recruitment of District Judges.

11.17 Maharashtra State Judicial Service Association though initially opposed the proposal, subsequently sent revised view favouring the proposal.

11.18 But, Manipur Judicial Officers’ Association, Imphal, The Delhi Higher Judicial Service Association and the All India Association of Direct Recruits have strongly opposed the move for making Service judges eligible for direct recruitment.

11.19 The Judicial Officers / Services Associations of Tamil Nadu, Mizoram , Assam , Uttar Pradesh and Goa , have gone a step further. They are totally against the direct recruitment of District Judges.

11.20 But, the Uttar Pradesh Judicial Service Association in the alternative has indicated that the in-service Judicial Officers with seven years service be allowed for such direct recruitment.

INDIVIDUAL VIEWS :

11.21 Justice R.N. Mishra, Former Chief Justice of India , Mr. Justice D.R. Khanna, Former Judge, Delhi High Court, Mr. Justice Bopanna and Mr. Justice K. Ramachandriah, Former Judges, Karnataka High Court are in agreement with the suggestions of the Commission.

11.22 Mr. Justice R.S. Sarkaria, Former Judge of the Supreme Court and Mr. Justice D.M. Chandrashekhar, Rtd., Chief Justice of Karnataka do not want such opportunity for the Service Judges.

PROPOSED CONDITIONS :

11.23 Patna High Court is of the view that only those Subordinate Judicial Officers with 10 years of service could be allowed for direct recruitment, while Bombay High Court has stated that four years of service may be sufficient.

11.24 Gujarat High Court has stated that Officers in the Lower Judicial Service with seven years experience, after written test and oral interview could be recommended for direct recruitment.

11.25 Maharashtra Government requires seven years of minimum service. Under Secretary (Law), Government of Goa, Panaji suggests five years experience. The Meghalaya Government wants that the requisite service as qualification could be prescribed by Rules, with provision for relaxation in deserving cases.

11.26 The Gujarat Judicial Service Association, Haryana Civil Judges’ Association are for prescribing seven years of service, while, the Judges of the City Civil and Sessions Court, Mumbai are for six years of service.

11.27 The Bihar Judicial Service Association and West Bengal Judicial Officers Association have stated that experience in service plus the practice in the Bar together should not be less than seven years. Similar is the view expressed by the Maharashtra State Judicial Service Association.

11.28 The Karnataka State Judicial Officers’ Association wants only Civil Judges (Senior Division) with minimum experience of three years be allowed.

11.29 Kerala Magistrates (Judicial) Association wants every member of subordinate Judicial Service, on completion of two years service, be allowed to apply as against ten per cent of the posts reserved for direct appointment.

11.30 Delhi Judicial Service Association has stated that all posts reserved for direct recruitment from Bar should be left open for selection by a competitive examination both for Advocates of seven years and Judicial Officers of seven years service.

11.31 Justice R.N. Mishra, Former Chief Justice of India wants 10 years experience in service should be insisted upon, while Tripura Judicial Service Association considers that Officers of Grade II with minimum of seven years service may be allowed.

11.32 There are different reasons given by different High Courts and Associations, justifying the need to amend Article 233(2) of the Constitution. They are set out herein in laconic details:

PATNA HIGH COURT :

11.33 That an opportunity for Service judges to compete for the post of District Judges would give an impetus and improve their efficiency.

BOMBAY HIGH COURT :

11.34 If meritorious young blood is to be encouraged in the interest of the judicial system, then the avenues should be kept open. There is no harm to allow officers of lower judicial service to compete for direct recruitment to the cadre of District Judges. In the matter of such candidates, High Court will have an added benefit of assessing candidates on the basis of their work and confidential record.

PUNJAB & HARYANA HIGH COURT :

11.35 It would provide a chance to young and competent Judicial Officers to improve discipline in judicial service and make Officers work more efficiently, diligently and sincerely.

ALLAHABAD HIGH COURT :

11.36 That the experience at Bench is not inferior to that at Bar and it will be in tune with the provisions under Article 217(2) of the Constitution of India. It will further introduce fair and meritorious competition.

HARYANA CIVIL JUDGES’ ASSOCIATION :

11.37 It would enable judicial officers to work more efficiently, diligently and sincerely in the hope of getting quick promotion which is otherwise too slow in the judicial service.

ALL INDIA JUDGES’ ASSOCIATION :

11.38 Such an incentive will tend to keep such junior Judges on their toes to make them constantly improve their professional knowledge and experience. They would make more determined effort for keeping their professional image clean, hoping to get quick promotion through competition.

REASONS AGAINST -

HIGH COURT OF DELHI :

11.39 If Officers in the Lower Judicial Service are allowed to compete for direct recruitment of District Judges, there are possibilities of juniors overtaking their seniors which may lead to frustration in the seniors and it may not be conducive to judicial discipline.

HIGH COURT OF KARNATAKA :

11.40 It may lead to indiscipline, heart-burn, jealousy etc.

CONSTITUTIONAL AMENDMENT PROPOSED :

11.41 The following amendment to Article 233(2) of the Constitution has been proposed:

11.42 PUNJAB & HARYANA HIGH COURT :

Art. 233 :

(2) " Any person already in the judicial service of a State continuously for not less than seven years or any person who has been for not less than seven years an advocate or a pleader shall be eligible to be appointed a District Judge only if he is recommended by the High Court for appointment."

11.43 BOMBAY HIGH COURT :

Art. 233 :

(2) Deletion of word "only" from Article 233(2) of the Constitution

and addition of Sub-Clause (3) to Article 233 as under:

"(3) A person already working in the State Judicial Service in the cadre of Civil Judge (Junior Division) / Judicial Magistrate First Class; Civil Judge (Senior Division) / Chief Judicial Magistrate, with at least four years of service shall be eligible to be appointed as a District Judge."

11.44 CALCUTTA HIGH COURT :

Art. 233 :

(2) " A person shall only be eligible to be appointed as a District Judge if he has been for not less than seven years as an advocate or pleader or a member of the Subordinate Judicial Service and is recommended by the High Court for appointment."

11.45 ALLAHABAD HIGH COURT :

Art. 233 :

(2) "A person having total 7 years experience at Bar or Judicial Service or both shall be eligible to be appointed as District Judge and who is recommended by the High Court for appointment."

11.46 Bihar Judicial Service Association :

Article 233 (2) be amended by deleting the word " not already in service".

11.47 All India Judges’ Association :

Art. 233 :

"(2) Appointment of District Judges :

A person shall not be appointed a District Judge unless -

a) he has worked at least for 7 years in any State Judicial cadre or as a Law Officer, within the territory of India;

or

b) he has been an Advocate for 7 years;

c) his total tenure of work under clauses (a) & (b) has been for 7 years."

11.48 West Bengal Judicial Service Association :

Art. 233:

(2) "That a person already in the service or not of the union or the State shall only be eligible to be appointed as District Judge if he has been for not less than 7 years a Judicial Officer or an Advocate or a Pleader or both a Judicial Officer and an Advocate or Pleader on the recommendations of the National Judicial Service Commission."

11.49 Karnataka State Judicial Officers Association :

Art. 233 :

(2) "A person shall not be qualified for appointment as a District Judge unless he is in Judicial Service of the Union or State and has worked for not less than 3 years in the cadre of Civil Judge (Senior Division) and is not less than 40 years of age."

CONCLUSION :

11.50 We have given our anxious consideration to the views and comments expressed by the respondents to our Questions 8.3 and 8.4.

11.51 The majority of the High Courts and the Service Associations barring a couple of them are for giving an opportunity to the Service judges for direct recruitment of District Judges. Even, some of the Governments are in favour of such a move. The reasons given in support of the proposal are that it would promote efficiency, improve discipline in judicial service and make the officers to work more efficiently, diligently and sincerely.

11.52 We are highly impressed by the reasons given by the High Courts of Allahabad, Bombay, Punjab & Haryana and All India Judges’ Association. If meritorious young blood should be introduced in the mixed cadre, there is no reason why merited serving judges should be excluded from consideration for direct recruitment. In such selection the High Court will have an opportunity to assess the merit of serving judges as against the merits of the competent advocates. The Bombay High Court has rightly observed that the High Court in such selection will have an added advantage of assessing the service judges on the basis of their work and confidential records.

11.53 We agree that if an opportunity is afforded, it would make the Officers to work more efficiently, diligently and sincerely.

11.54 We do not understand why such an opportunity should create indiscipline, heart-burn and jealousy amongst the judicial officers as the Karnataka High Court has stated. We are equally unable to appreciate that it may lead to frustration amongst the Seniors who are not selected for direct recruitment as indicated by the Delhi High Court.

11.55 It may be noted that we are not recommending for accelerated promotion to Service judges. The accelerated promotion to a junior judge may lead to heart-burn and jealousy in the Service. Though we have formulated a question on that aspect and though some of the High Courts and Associations are in favour of introducing the system of accelerated promotion, we do not consider it desirable to have that system since it is likely to lead to bitterness and jealousy amongst the officers.

11.56 The Commission considers that if an opportunity for direct recruitment is afforded to inservice judges, it would, to a great extent, remove the frustration which is presently dogging them. Such an opportunity would add lustre to their career and enable them to outshine with their merit, hard work and sincerity.

11.57 The contention urged by the directly recruited District Judges that those who have got the promotional channel should be allowed to make a move only through that channel does not sound to reason. In All India Administrative Service, there is no bar for any person in any service for applying, subject to the age prescribed. It is a common experience that many of the successful IAS and IPS candidates initially belonged to one or the other service.

11.58 The Commission, therefore, considers that it is reasonable and also necessary to provide eligibility for service judges for direct recruitment of District Judges.

11.59 As seen earlier, some of the High Courts have suggested ten years of minimum service to earn eligibility for consideration for recruitment of District Judges.

11.60 Patna High Court has suggested 10 years of such service. Gujarat High Court requires seven years of experience. Punjab & Haryana High Court also wants minimum seven years of service.

11.61 The High Courts of Calcutta and Allahabad have suggested seven years of minimum experience but that seven years should be inclusive of the antecedent practice as advocate or pleader.

11.62 Bombay High Court has suggested minimum of four years judicial service; perhaps, against the background that the minimum practice at the Bar for entering the judicial service is three years and both put together would be seven years. But it may be noted, the Civil Judge (Junior Division) with four years service may not get adequate exposure and may not get any opportunity for trial of serious Criminal cases and Civil suits involving high stakes.

11.63 Apart from that, it is not correct to tag on the Bar practice with Judicial experience for direct recruitment of District Judges. Such Bar practice will count for initial entry into judicial service and it is not proper to give the benefit of it again for the same officer, while seeking appointment as District Judges.

11.64 In this context, reference may be made to Clause (2) of Article 217 of the Constitution. It reads as under:

"(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a Citizen of India and -

(a) has for at least ten years held a judicial office in the territory of India; or

(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession."

11.65 In computing the period of judicial office held by an officer his antecedent practice at the Bar is not to be counted. On the same line of reasoning, the antecedent Bar practice should be excluded for Judicial Officer to earn eligibility for direct recruitment of District Judges.

11.66 The Clause (2) of Article 233 provides that an Advocate or a Pleader must have minimum 7 years of practice to become eligible for appointment as District Judge. If we consider that a Judicial officer is to be made eligible for direct recruitment as District Judge, he must have also a minimum of 7 years of service. We cannot apply different yardstick. The same yardstick must be used for Advocates as well as inservice judges.

11.67 We accordingly suggest that Clause (2) of Article 233 be substituted with the following clause:

Art. 233

(3) A person shall be eligible to be appointed directly as a District Judge if he has been for not less than seven years an Advocate or held judicial office in the territory of India and is recommended by the High Court for appointment."

11.68 We propose to recommend age limit between 35 years and 45 years for Advocates to apply for direct recruitment. The same age limit shall also be prescribed to service judges for seeking direct recruitment as District Judges.

11.69 We request the Central Government, all High Courts, State Governments, Administration of Union Territories to take immediate action for amending Clause (2) of Article 233 as indicated by us.

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