Institute of Legal and Management Studies

While hearing the issue whether there should be a quota for the promotion of serving judicial officers as District Judge posts, the Supreme Court on Wednesday observed that it will not issue any direction to take away the discretionary powers of the High Courts in making appointments.

The Court also said that it wanted to ensure that the aspirations of all categories, promotee judges and direct recruits, are protected alike.

A 5-judge Constitution Bench comprising Chief Justice of India BR Gavai, Justices Surya Kant, Vikram Nath, K Vinod Chandran and Joymalya Bagchi is hearing the issue of whether there should be a quota in the District Judge posts for the promotion of judicial officers who joined the service at the entry level.

This is to address the problem of career stagnation faced by judicial officers who join as Civil Judge Junior Division/Judicial Magistrate, due to a lack of adequate promotional avenues.

On the second day of hearing, Senior Advocate R Basant, appearing for a few direct recruits from Kerala and Bihar (intervenors), opposed the creation of any such quota, as it would affect the opportunities for direct recruitment from the bar. He underlined that the present issue should be seen from the larger view of ensuring the quality of judicial officers, irrespective of whichever source they come from.

He stressed that traditionally, the Indian Judiciary has welcomed direct recruits as a source of appointment to maintain the holistic health of the justice delivery system. He explained :

"Right through the Indian judiciary, we have accepted that lateral induction of members of the bar is required and necessary for the health of the institution."

He cautioned that while giving opportunities to the promotees, the Court should not overlook the growth of the officers appointed from direct recruitment.

"I am only on the point that these lateral entry people must not be frustrated. They should be looked after. The grievance of the other section- the promotees cannot be looked at in isolation. For the health of the system, the people directly recruited must also have avenues, they also have career progression."

At this juncture, CJI Gavai said : "Nobody doubts about that proposition; the question is whether only their aspirations are to be looked into, or the aspirations of all."

On the last hearing, Sr Advocate Siddharth Bhatnagar, the amicus curiae in the matter, suggested that a 50:50 (direct recruits to promotees) quota be set up for considering the recommendations to the post of district judge.

Sr Adv Rakesh Dwivedi, appearing for the Allahabad High Court, opposed the Court issuing any directions to change the present arrangement. He highlighted that appointments to the District Judiciary was within the ambit of the High Courts, and directions by the Supreme Court might impinge on their autonomy.

He stressed that the Supreme Court should not make any guidelines as it would be in the teeth of Chapter 6 Part 6 of the Constitution, which covers the High Court's authority over the appointment of district judges, their conditions of service, etc.

Disagreeing with the amicus' suggestions, Dwivedi said that having a quota would lead to several uncertain issues, like the extent to which such a quota would apply, which would impinge upon the discretion granted to the High Court. He also cautioned against laying down pan-India uniform directions, as the situation in each State was different.

CJI however, clarified that even if the bench agrees to lay down guidelines, they will not hinder the discretionary powers of the High Courts. He underlined the need for a certain amount of uniformity in the policy for recommendations across High Courts.

“We will not take away the discretion of the HC in recommending names. The recommendation will be made by the HC solely on the satisfaction with regard to the suitability of the candidate to be elevated.”

During the hearings, Dwivedi also emphasised that, as per the state-wise data, it was incorrect to say that promotees were not adequately represented.

He said : “In Chhattisgarh, out of 23 judges, 14 are promotees; In Gujarat, out of 33 , 24 are promotees; least 13 High Courts, including West Bengal, Delhi, Tamil Nadu- so where is the need for uniformity?"

He further explained that the reason for the age gap is that lawyers are making a choice to appear in the exams for Junior Division posts only at a later stage in life. The average age in the Allahabad High Court for taking the exams is 28 years

“If I choose to appear at the age of 35 and become a Munsfif and then I complain that I do not get a fast track, these are the problems existing mylords and these facts are not before mylords.”

He added that previously, in the Allahabad High Court alone, the age gap between the direct recruits and promotees used to be 10 years, but in recent times, the age gap has reduced, with a variance of merely 4 months to 3 years. This, Dwivedi attributed to the smooth functioning of the roaster system and holding exams on time.

The counsel representing the Punjab and Haryana High Court also agreed to the submission made by Dwivedi. She stressed that the roster system has worked in the High Court and added that once the judicial officers are appointed as Additional District Judges from all three sources - (1) direct recruits; (2) promotees; (3) LDCE, then they lose their birthmark and dissolve into being one cadre alone.

Thus, the officers now belonging to the common cadre should be treated equally without the need for the quota, as suggested by the amicus. She stressed that in the P&H High Court, the composition of district judges had more promotees than direct recruits.

Sr Advocate PS Patwalia appeared for the Delhi High Court and briefly submitted that the roster system is a good approach for appointment.

"In the roster, the problem has been the delay in the selection process of the direct recruits; on account of the delay, this roster could not work properly."

Due to a paucity of time, Patwalia would be continuing with his submissions at the next hearing.

What Are The 4 Suggestions Given By The Amicus?

Sr Advocate Siddharth Bhatnagar, appearing as the amicus has submitted the following suggestions to ensure adequate representation of promotees in the appointment of district judges across states :

(1) It is thus suggested that for appointment to the post of District Judge (Selection Grade)/ District Judge (Super Time Scale)/ Principal District Judges a quota of 1:1 for Promotee District Judges and Direct Recruit District Judges may be created. The principle of “merit cum seniority” for selection to these posts can then be applied within the said quota;

(2) Alternatively, the zone of consideration for appointment to the post of District Judge (Selection Grade) and District Judge (Super Time-Scale) should comprise of 50% officers from the Direct Recruited District Judges and 50% from Promotee District Judges. Thereafter, the appointment would be made on the recommendation of the respective High Courts, on the basis of “merit cum seniority”. Thus, in the zone of consideration, 50% officers shall be the Senior most Promotee District Judges and 50% officers shall be the senior most Directly Recruited District Judges.

(3) Alternatively, it is suggested that this Hon'ble Court may accept the recommendations of the Shetty Commission and grant weightage to Promotee District Judges for experience in terms of 1 year seniority for every 5 years of judicial service, subject to maximum of 3 years. It is further submitted that these additional years of seniority may be considered as service in the District Judge cadre;

(4) Alternatively, this Hon'ble Court may consider the recommendation made by the Committee of the Hon'ble High Court of Andhra Pradesh which had recommended three separate seniority lists in respect of (a) Promotee District Judge (Regular Promotion) (b) Promotee District Judge (LDCE) (c) Direct Recruit District Judge, in the ratio of their overall cadre strength of 50:25:25 and selection to the higher posts in the cadre of District Judges be made on basis of such seniority list.

What Led To The Reference ?

Earlier, the Court had sought the responses of the High Courts and the State Governments, expressing concerns over the issue. Senior Advocate Siddharth Bhatnagar, the amicus curiae in case, had highlighted an "anomalous situation" in many States, where Judicial Officers recruited as Judicial Magistrate First Class (JMFC) often do not reach even the level of the Principal District Judge, leave alone reaching the position of the High Court Judge. The amicus stated that this situation often discouraged bright youngsters from joining the judiciary.

While referring to the larger bench, the Court considered the aspect put forward by the amicus, for a proposal to reserve a certain percentage of posts from the cadre of Principal District Judges for the promotion of Judges selected initially from the JMFC Cadre. During the last hearing, Senior Advocate R Basant opposed this proposal, saying that this will deny opportunities to meritorious candidates who wait for direct recruitment as District Judges.

In the reference order, the bench observed that a balance will have to be struck between the competing claims. However, this would involve consideration of some of the earlier orders passed by 3-judge benches.

The reference order observed :

"It cannot be disputed that the judges who were initially appointed as CJ(Civil Judges) gain rich experience since they have been serving in the judiciary for a number of decades. Furthermore, every judicial officer, be it one who was initially recruited as CJ or one who was directly recruited as a District Judge, has an aspiration to reach at least up to the position of a High Court Judge.

We are, therefore, of the view that a proper balance has to be struck between the competing claims. However, this issue would involve consideration of some of the judgments and orders passed by Benches comprising of three learned judges of this Court. Therefore, in order to put the entire controversy at rest and provide a meaningful and long-lasting solution, we are of the considered view that it will be appropriate if the issue is considered by a by a Constitution Bench consisting of five learned Judges of this Court."

Case Title: ALL INDIA JUDGES ASSOCIATION vs UNION OF INDIA|

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