Institute of Legal and Management Studies

The Supreme Court Constitution Bench today reserved its decision on the issue of whether a judicial officer, who has already completed 7 years in the Bar, is entitled to be appointed as a District Judge against the Bar vacancy.

The 5-judge bench of Chief Justice of India BR Gavai, Justices MM Sundresh, Aravind Kumar, SC Sharma and K Vinod Chandran considered the matter.

The bench has been constituted after the 3-judge bench of Chief Justice of India BR Gavai, Justice K Vinod Chandran and Justice NV Anjaria passed an order on August 12, referring the matter to a larger bench

The four main issues considered by the bench are :

(i) Whether a judicial officer who has already completed seven years in Bar being recruited for subordinate judicial services would be entitled for appointment as Additional District Judge against the Bar vacancy?

(ii) Whether the eligibility for appointment as a District Judge is to be seen only at the time of appointment or at the time of application or both?

(iii). Whether there is any eligibility prescribed for a person already in the judicial service of the Union or State under Article 233(2) of the Constitution of India for being appointed as District Judge?

(iv). Whether a person who has been Civil Judge for a period of seven years or has been an Advocate and Civil Judge for a combined period of seven years or more than seven years would be eligible for appointment as District Judge under Article 233 of the Constitution of India?

In the 3 days long hearing, the petitioners mainly contended that the decision in Dheeraj Mor v. Hon'ble High Court of Delhi required reconsideration. In Dheeraj Mor(3-judge bench), the Court held that civil judges are not eligible to seek direct recruitment to the post of District Judges in the bar quota.

Here the petitioners argued that it was incorrect to hold that the phrase 'A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge' means that those in service as civil judge would be excluded from being appointed as a district judge.

The petitioners also emphasised that the 7-year practice rule for advocates under Art. 233(2) cannot be interpreted to mean 7 continuous years of practice as per Dheeraj Mor case.

The petitioners were represented by Sr Advocates Jayant Bhushan, Arvind Datar, PS Patwalia, Gopal Sankarnarayanan, V Giri, Vibha Makhija, Jaideep Gupta, Seshadiri Naidu, Manish Singhvi and Maneka Guruswamy.

The respondents, on the other hand, argued that Article 233(2) excluded candidates in service from the opportunity of direct recruitment as it only specifies the qualification for practising advocates.

It was stressed that the view that Article 233(2) was limited to advocates held the ground for over 60 years and is governed by the principle of stare decisis. It was further submitted that the 7-year practice rule has to read to mean 7 years of continuous practice by the advocates.

The Respondents were represented by Sr Advocates CU Singh, Nidhesh Gupta, Vijay Hansaria, Rajiv Shakder, and others

Why Was The Reference Made?

The Court passed the reference order in an appeal filed against a Kerala High Court judgment which set aside the appointment of a District Judge on the ground that, at the time of issuing the order of appointment, he was not a practising Advocate and was in judicial service, functioning as a Munsiff.

In 2021, the Supreme Court had stayed the High Court's judgment.

The appellant Rejanish KV was a practising lawyer having 7 years' experience in the Bar when he submitted his application for the post of District Judge. He was also an applicant for selection to the post of Munsiff/Magistrate and while the selection process of District Judge was underway, he was appointed as a Munsiff-Magistrate on 28/12/2017. After he got appointment order to the post of District Judge, he was relieved from the Subordinate Judiciary on 21/8/2019 and he took charge as District Judge, Thiruvananthapuram on 24/8/2019. Another candidate [K. Deepa] filed a writ petition before the High Court challenging his appointment contending that he was not eligible to be appointed as District Judge since at the relevant time when he was appointed as a District Judge, he was not a practising Advocate and was in judicial service, functioning as a Munsiff.

This writ petition was allowed by the Single Bench relying on a Supreme Court judgment in Dheeraj Mor v. High Court of Delhi in which it was held that an advocate who applies for the post of District Judge by way of direct recruitment should continue to be a practising Advocate until the date of appointment.

Though it upheld the Single Bench judgment, the Division Bench of the High Court observed that several appointments of District Judges may have been made across the country based on the Rules applicable in the respective States which may, as in the case of the Kerala Rules be contrary to the declaration of law in Dheeraj Mor. It, therefore, granted certificate to file appeal before the Supreme Court observing that matter involves substantial question of law of general importance.

Case: REJANISH K.V. vs. K. DEEPA [Civil Appeal No(s). 3947/2020] and other connected matters