Institute of Legal and Management Studies

A Constitution Bench of the Supreme Court on Tuesday commenced its hearing on the issues regarding inter-se seniority in the cadre of higher-judicial service. The Court is also considering 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 lack of adequate promotional avenues.

The 5-judge Bench of Chief Justice of India BR Gavai, Justices Surya Kant, Vikram Nath, K Vinod Chandran and Joymalya Bagchi is hearing the matter.

During the hearing, the bench orally expressed concern over the unintended consequences of the recent judgment in Rejanish KV v K Deepa allowing judicial officers with seven years of experience to appear for direct recruitment to the post of District Judge. Justice Surya Kant observed that while the judgment aimed at balancing seniority, it might inadvertently encourage junior judicial officers to focus more on preparing for the examination rather than adjudicating cases, leading to a crisis at the lower judicial level. Agreeing with him, Senior Advocate Siddharth Bhatnagar, amicus curiae, remarked that such officers would prioritize exam preparation over their core judicial work and Annual Confidential Reports (ACRs), thereby distorting the incentive structure and shifting the focus away from judicial performance.

Sr Advocate Siddharth Bhatnagar, appearing as the amicus in the matter, at the outset drew the attention of the bench towards the disparity in age and career progression between promotee judicial officers and those directly recruited from the Bar. He noted that while members of the Bar often enter the Higher Judicial Service at a relatively younger age, Civil Judges obtain promotion much later in their careers.

Citing the Justice Shetty Commission Report, the counsel highlighted that in Andhra Pradesh, the average age of a promoter District Judge is 48 years, while that of a direct recruit is 39. The disparity, he said, was consistent across states- in Assam, it stands at 51 years (promotee) as against 38 (direct recruit), and in Bihar, 54 years as against 41 years, respectively.

Justice Chandran weighed in to add, "In Bihar it takes 17 years to become a district judge, for promotees."

During the hearing, Justice Surya Kant asked what would be the incentive for an officer to undertake the Limited Department Competitive Exam(LDCE), if a quota is created for promotion.

The discussion also veered towards the recent judgment, which held that judicial officers who have 7 years of experience can also appear for direct recruitment examination for appointment as District Judges.

Justice Surya Kant said, "That is for balancing of seniority, that is also important. Because of that judgment, if you give so much incentive to the seniority for the direct recruits, our junior cadre will start only working for competing in the (district judge post)"

Agreeing to the same, Bhatnagar replied : "And they will not be interested in deciding cases, they will only study for the examination."

Justice Kant flagged, "We will have a crisis in the junior division level."

Bhatnagar further added that such an incentive structure would change the priorities within the lower judiciary :

"Exactly, you will spend 7 years preparing for your district judge etc, then you are not bothered about your ACRs."

He further pointed out that the newly introduced eligibility criteria could alter the current working dynamics: "In that matter, hardly anyone was taking LDCE, now they will take because of the incentive and you are assuming that every civil judge after 7 years will clear the examination. We are dealing with 50% of the cadre here, for them seniority and promotion is a very important aspect."

Bhatnagar made two main suggestions. Firstly, he clarified that no quota was being sought at the entry level and that only at the super-time scale should promotees be given preference.

Notably, a 'super-time scale' promotion refers to a significantly larger jump in promotion on the basis of performance and seniority over time. It is above the regular 'time scale'.

Secondly, he suggested the need for a 'zone of consideration' as an alternative approach to the first suggestion. He stressed that when High Courts consider 3 times the number of available posts, for example, for 10 positions, they consider 30 names; amongst those 30 names, 15 should be from direct recruits and 15 from the promotee cadre.

Justice Bagchi cautioned that such an arrangement might create “a cadre within a cadre.” He underscored that dividing eligible candidates equally between promotees and direct recruits could stratify the cadre instead of maintaining a common structure. He stressed that any system that divides the cadre into subgroups would make it non-uniform.

"Your second suggestion will in fact create a cadre within a cadre. If there are 10 candidates eligible for supertime or selection grade, it would be 5 from promotees and 5 direct recruits. So what will happen is, at the district judge, entry level, it's a common cadre, if the second suggestion is adopted, then we are creating a cadre within a cadre."

"We can definitely consider the suggestion of quota but if we take the cadre as groups it may be not uniform but a stratified cadre," Justice Bagchi expressed.

Bhatnagar concluded by referring to data from several states, including Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Mizoram, Nagaland, Tamil Nadu, Sikkim, Uttarakhand, West Bengal, Delhi, and Jammu & Kashmir, where there are sufficient numbers (if not more), of promotee officers.

Sr Adv Vibha Makhija, appearing for the LDCE candidates flagged concerns with regards the suggestion of the amicus. She stressed that LDCE category ends up being considered within the category of promotees.

If a quota for consideration as suggested by the amicus was to be considered, then what would be the standard of seniority for being in the zone of consideration? Once a candidate had cleared the exam through the LDCE mode, s/he would continue to be in the same position in the promotee list, she said.

She further stressed, "Then there is no incentive for me to better my skills, your Lordships. And from a practical, state-wise aspect, I can show to your Lordships, that promotees who took LCE exam, they are actually coming lower in, seniority than higher in seniority."

Sr Advocate V Giri, appearing for the Kerala High Court, submitted that while the post of Principal District Judge is not covered inder the existing service rules, it being an essential position, guidelines would be required from the bench on giving additional weightage to those officers comings from remoter channels.

"Principal District Judge is not a post covered by the rules but it is required. And therefore mylords, when we chose that, we normally go by the position of seniority, merit and suitability are equal. Therefore we go by seniority, but in that it is possible that mylords may lay down some guidelines, where mylords the HC could still retain discretion in the question of giving some weightage to those persons who have come through remote channel when it comes to the question of assignment or responsibilities as a principal district judge."

He added that giving weightage in such scenarios would not amount to making a sub-cadre as flagged by Justice Baghchi. He reasoned that none of the past decisions of the Supreme Court have ruled that a valid criterion cannot be adopted for the purpose of assignment or an advantage to a person within a cadre

Counsels representing promotees from Bihar as well as Punjab and Haryana also made brief submissions.

The bench will hear the other side's arguments tomorrow.

What Led To The Reference ?

Earlier, the said bench 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|