Can Judicial Officer's Experience Be Counted Towards '7-Year Practice' For District Judge Direct Appointment? Supreme Court Hears [Day 2]

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 ...

Can Judicial Officer's Experience Be Counted Towards '7-Year Practice' For District Judge Direct Appointment? Supreme Court Hears [Day 2]

Anmol Kaur Bawa

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