A FIVE-JUDGE CONSTITUTION BENCH of the Supreme Court on Thursday reserved its judgment on whether judicial officers who have earlier completed seven years of practice as advocates can stake claim to district judge posts earmarked for advocates practising at the Bar. The question arose after doubts were raised over the interpretation of Article 233(2) of the Constitution, which prescribes the qualifications for appointment as a district judge.
Article 233(2) says, “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.”
The five-judge bench comprising Chief Justice B.R. Gavai, and Justices M.M. Sundresh, Aravind Kumar, Satish Chandra Sharma and K. Vinod Chandran reserved the judgment after hearing extensive arguments spread over three days – September 23, 24 and 25. The Constitution Bench considered an August 12 reference by a three-judge bench that comprised Chief Justice Gavai, and Justices Chandran and N.V. Anjaria.
The three-day-long hearing saw senior advocates Arvind Datar, Jayant Bhushan, Gopal Sankaranarayanan, Menaka Guruswamy, and others argue for the petitioners, questioning the top Court judgment in the Dheeraj Mor (2020) case. The respondents were represented by senior advocates Chander Uday Singh, Nidhesh Gupta, Vijay Hansaria, and others, who defended the position settled in 2020 by the Supreme Court in Dheeraj Mor.
The question arose after doubts were raised over the interpretation of Article 233(2) of the Constitution, which prescribes the qualifications for appointment as a district judge.
While making the reference, the three-judge bench felt that the 2020 ruling required reconsideration. In its February 19, 2020 judgment, a bench of Justices Arun Mishra, Vineet Saran and S. Ravindra Bhat (all since retired) had ruled that “Only practising advocates with at least seven years of continuous practice, and not already in judicial service, are eligible for direct recruitment as District Judges from the Bar.” It had also said that the members of the judicial service of the State can be appointed as District Judge by way of promotion or limited competitive examination.
The Constitution Bench examined four main issues. It considered whether a judicial officer who had completed seven years at the Bar before joining service could still be appointed as a district judge against the Bar quota. The judges also debated whether eligibility must be tested at the stage of application, at the time of appointment, or both. The third issue was whether Article 233(2) prescribes any separate eligibility for those already in judicial service. Lastly, the bench looked into whether a person’s combined service as an advocate and a civil judge for seven years or more would suffice for district judge eligibility.
Petitioners, seeking reconsideration of the 2020 judgment, argued that the Dheeraj Mor interpretation was too restrictive. They submitted that the constitutional phrase “a person not already in the service of the Union or the State” should not disqualify someone who had fulfilled the seven-year practice requirement before joining judicial service. They further maintained that the rule requiring seven years of practice did not mean uninterrupted practice, as suggested earlier.
On the other hand, respondents defended the settled position, contending that Article 233(2) was meant only for practising advocates and specifically excluded those already in service from the Bar quota. Stressing on stare decisis (legal doctrine that courts must follow precedent—the decisions made in previous cases with similar legal issues, …) they pointed out that the interpretation has held the field for over six decades. They also insisted that the seven-year rule should be read as continuous practice at the Bar, not a combination of legal practice and judicial service.
The reference arose from an appeal against a Kerala High Court decision which invalidated the appointment of Rejanish K.V. as a district judge. Though he had over seven years’ standing at the Bar when he applied, he joined as a munsiff magistrate during the selection process. By the time his appointment as district judge came through, he was no longer a practising advocate but in judicial service. The High Court held, relying on Dheeraj Mor, that such a candidate was ineligible.
The reference arose from an appeal against a Kerala High Court decision which invalidated the appointment of Rejanish K.V. as a district judge.
While the Division Bench of the High Court agreed with this reasoning, it acknowledged that several appointments across the country may have been made under state rules contrary to Dheeraj Mor. Considering the far-reaching impact, it certified the case for appeal before the Supreme Court. The top Court stayed the Kerala High Court ruling in 2021.