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24 Sep 2025, 03:33 PM
The Supreme Court today continued the hearing of its constitution bench 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 a Bar vacancy.
The petitioners today emphasised that several factors are to be seen behind why a potential candidate discontinues advocacy; the discontinuation alone cannot mean that the candidate would not have adequate merit for being considered as a district judge.
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 following issues were referred to the Constitution Bench :
(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?
Sr. Adv. Dama Seshadiri Naidu appeared for a petitioner, who was an advocate, had previously switched to being a judge and then returned to advocacy. He stressed that while advocacy may attract a lot of financial growth, young lawyers are consciously choosing the path of the judiciary.
"My lords kindly appreciate, for whatever reason, maybe financial compulsion or the love of the profession.... my lords can see someone can make tons of money as an advocate, still they volunteer to be judges."
He said that "gold medalists and Ivy League graduates" are now preferring to join judicial services, and the bright minds might feel dispirited if they don't get promotional avenues.
Referring to yesterday's argument raised by Sr Adv. PS Patwalia that the 7-year rule cannot mean to be continuous 7 years, Naidu submitted, "continuity interpretation becomes quite narrow."
He mentioned how J Krishna Iyer was a State Minister from 1957 to 1959 and then became a judge at the Kerala High Court in 1968. He also mentioned that the USA Chief Justice John Marshall never got to complete his Law.
Naidu emphasised that more than continuity, one should consider the merit and passion of a candidate towards serving justice. One may leave the advocacy for multiple reasons.
"Continuity may not be..., it's only the passion and at the end the qualification.. because of various circumstances, they may be compelled to have different options."
Sr Advocate Manish Singhvi, appearing for one of the petitioners, explained the intent of Article 233.
He added that Article 233(1) was adopted from the Government of India Act 1935 and 'tweaked very intelligently'
Notably, Article 233 reads :
(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.
He stressed that the purpose of Article 233 was to ensure that the state governments do not interfere in the judicial appointments and that the independence of the judiciary is maintained. He added that while Article 233(1) cannot be called a source of appointment, the actual source of appointment lay under Article 233(2) and Article 235.
How Article 233 Is On A Different Footing From Articles 124 and 217, Yet Part Of The Same Cohesive Scheme
Sr Adv Gopal Sankarnarayanan appeared for one candidate who had topped the district judiciary exams but was reverted as a Junior Division after the decision in Dheeraj Mor.
He argued that Article 233 does not contain any explanation restricting the reckoning of an advocate's prior practice. Drawing a contrast with Article 124 (Explanation 2) and Article 217(2)(a)(a), he submitted that in those provisions, the Constitution specifically included or excluded certain periods for calculating experience.
Gopal S also referred to the decision in R Poornima v. Union of India which held that serving Judicial Officers cannot invoke Explanation (a) of Article 217 of the Constitution of India to club with their judicial service, the experience that they had at the Bar before joining judicial service, to claim eligibility for considering them for elevation as High Court judges.
He submitted that here the Court had refused to read “after” as “before” in Explanation (a) to Article 217(2), since the Constitution expressly excluded prior experience. However, Article 233 provided no such explanations, and such a silence on the specification/ mandate of the calculation of these 7 years would be in favour of the petitioners.
The absence of an explanation in 233 is in our favour, not theirs, because there is no before and after now which controls 233. He added that "Earlier period (as advocate) has to be added to the judicial period, because the explanation is absent"
Sr Advocate Maneka Guruswamy, appearing for one of the petitioners, placed reliance on data from the Ministry of Law and Justice to highlight the scale of vacancies in the subordinate judiciary, nearly 4,789 posts lying vacant out of 25,870 sanctioned strength, including around 8,000 District Judge positions.
She urged the Court to interpret Articles 124, 217, and 233 as part of one cohesive scheme under the constitutional chapter on the Judiciary. She added that Article 233 should be extended the same beneficial interpretation given to explanation 2 of 124(3) and explanation A(a) to 217(2)- bar experience and judicial experience are treated as equivalent.
"Explanation 2 of 124(3) and explanation A(a) to 217(2)- bar experience and judicial experience are treated as equivalent. It is the same stream, 2 rivers flowing into the ocean, I am asking that, that constitutional ocean also be extended to 233."
Guruswamy stressed that India was conceived as an integrated, not federal, judiciary, unlike the United States where each state has its own Supreme Court. A narrow reading of Article 233, she contended, would not only defeat the framers' vision of an integrated judiciary but also undermine the nature of the Indian constitutional state.
Article 233 Only Recognises The Two Sources Of Judicial Appointment; It Does Not Tell How The Sources Are To Be Operated: Respondents Argue
Appearing for one of the respondents, Sr Advocate CU Singh mainly contended that the intent of Article 233 is only to set that the formal sources through which the appointments could occur- (1) judicial promotions and (2) direct recruitment. In no way does Article 233 lay down the mechanism for selections within the two sources of recruitment.
"Article 233 clearly provides two sources of recruitment, but Article 233 doesn't provide the manner in which those two sources will be operated."
He added that this mechanism for appointment within these sources is left for the executive to decide in consultation with the High Courts.
"So the methodology of the sources is for the executive in consultation with the HC to decide by statutory rules."
Singh also argued that since the interpretation of Article 233 has remained consistent for over six decades and has stood the test of time, it is governed by the principle of stare decisis.
He submitted that the decision in Dheeraj Mor only reiterated the settled legal stand taken by various benches before it.
"Dheeraj Mor did not carve out anything new in the point on law or said anything new; all it did was reiterate what was said in Satya Narayan, Shushma Suri, All India Judges etc."
He specified that the only reason Dheeraj Mor had to deal with the issue was that the earlier two-judge benches had deviated from the settled law
Article 233(2) Does Not Permit Judicial Officers To Compete Under Bar Quota: Sr Advocate Nidhesh Gupta Explains
Sr Advocate Nidhesh Gupta, appearing for the Punjab and Haryana High Court, briefly submitted that the plain language of Article 233(2) makes no reference to judicial officers being eligible for direct recruitment as District Judges under the Bar quota.
"233(2) is making no reference to allowing those who are in service to be permitted here, from the words it is clear."
He stressed that subclause 2 only details the qualifications required for the advocates- that is, the 7-year practice rule, but the absence of clear qualifications for those in service under Article 233(2) shows that it was not intended for candidates in service. He explained :
"While 233(2) dealing with direct recruitment is prescribing the qualification for those who are advocates, there is no qualification prescribed for those who are in service."
"Where direct recruitment is being considered, the qualifications will be there for all those who compete. It will be incongruous for one category, which is applying for direct recruitment, where there is a qualification, but for another category, which is applying there are no qualifications."
Gupta also submitted that in Article 233, the period spent as advocate and then as a judge cannot be combined, as held in the Rameshwar Dayal Case. He said that this aspect will be elaborated in tomorrow's hearing.
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
Reports of previous hearing days :
Supreme Court Raises Concerns Over Judicial Officers' Career Stagnation Due To Delay In Promotions