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Practising Advocates' Experience Gained At Bar Injects Judicial Branch With Fresh Perspectives : SC [Read Judgment]

19 Feb 2020 3:04 PM GMT
Practising Advocates

Members of bar can add to the robustness of judiciary with their novel approaches to law.

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In the judgment holding that in-service judicial officers are not eligible to apply for direct recruitment to the post of District Judges, the Supreme Court has observed that the experience of a successful lawyer at bar cannot be considered as less important than that of a judicial officers.

Quoting from the SC decision in P. Ramakrishnam Raju v. Union of India and Ors., (2014) the Court said that "experience and knowledge gained by a successful lawyer at the Bar can never be considered to be less important from any point of view vis­à­vis the experience gained by a judicial officer".

"In our opinion, experience as an advocate is also important, and they cannot be deprived of their quota, which is kept at 25 percent only in the Higher Judicial Service", said the bench comprising Justices Arun Mishra, Vineet Saran and S Ravindra Bhat in the case Dheeraj Mor v Hon'ble High Court of Delhi.

"The recruitment from the Bar also has a purpose behind it...The members of the Bar also become experts in their field and gain expertise and have the experience of appearing in various courts", Justice Arun Mishra observed in the judgment.

In his separate but concurring opinion, Justice Ravindra Bhat observed that Constitution framers were "acutely conscious that practising advocates reflect independence and are likely offer a useful attribute, i.e. ability to think differently and have novel approaches to interpretation of the laws and the Constitution, so essential for robustness of the judiciary, as well as society as a whole". 

Justice Bhat further elaborated that Constitution makers envisaged that practising advocates should be given appointments at every rung of judiciary so as to take advantages of their "fresh perspectives" as a successful professional. 

It was said :

"The Constitution makers, in the opinion of this court, consciously wished that members of the Bar, should be considered for appointment at all three levels, i.e. as District judges, High Courts and this court. This was because counsel practising in the law courts have a direct link with the people who need their services; their views about the functioning of the courts, is a constant dynamic. Similarly, their views, based on the experience gained at the Bar, injects the judicial branch with fresh perspectives; uniquely positioned as a  professional, an advocate has a tripartite relationship: one with the public, the second with the court, and the third, with her or his client. A counsel, learned in the law, has an obligation, as an officer of the court, to advance the cause of his client, in a fair manner, and assist the court.

Being members of the legal profession, advocates are also considered thought leaders. Therefore, the Constitution makers envisaged that at every rung of the judicial system, a component of direct appointment from members of the Bar should be resorted to."

The case arose from a reference made by a two-judge bench in January 2018 on whether serving judicial officers, who meet the qualification of seven years practice as advocate( or a combined experience of 7 years as judicial officer and advocate), are eligible for direct recruitment to the post of District Judge under Article 233(2) of the Constitution of India.

The bench answered the reference by holding that Article 233 envisages two different streams of appointment - one, by promotion under Article 233(1), and the other by direct recruitment under Article 233(2). 

It was held that "practice" under Article 233(2) means continuous practice even as on the date of appointment. This was based on the use of expression 'has been in practice' in Article 233(2).

"The context 'has been in practice' in which it has been used, it is apparent that the provisions refers to a person who has been an advocate or pleader not only on the cut­off date but continues to be so at the time of appointment", the Court said.

Those joined service cannot sail in two boats

Justice Arun Mishra observed in the judgment that the serving judicial officers could have staked claim for the 25% direct recruitment quota by remaining in practice. Once they have joined the judicial stream, they are bound by the service rules.

"It was open to them not to join the subordinate services. They could have staked a claim by continuing to be an advocate to the Higher Judicial Service as against the post of District Judge. However, once they chose to be in service, if they had seven years' experience at Bar before joining the judicial service, they are disentitled to lay a claim to the 25% quota exclusively earmarked for Advocates; having regard to the dichotomy of different streams and separate quota for recruitment", the judgment said.

When someone joins a particular stream, i.e. a judicial service by his own volition, he cannot "sail in two boats".  

75% posts of District Judges were reserved for promotion stream of subordinate officers. The direct recruitment quota is kept at 25%.

On this basis, the Court held that the grievance that judicial officers were deprived of opportunity to become District Judges was not sustainable.

"The makers of the Constitution visualised and the law administered in the country for the last seven decades clearly reveals that the aforesaid modes of recruitment and two separate sources, one from in­service and other from the Bar, are recognised. We do not find even a single decision supporting the cause espoused on behalf of candidates, who are in judicial service, to stake their claim as against the posts reserved for advocates/pleaders", Justice Mishra said.

Conclusions of the bench

The bench answered the reference as follows :

"(i) The members in the judicial service of the State can be appointed as District Judges by way of promotion or limited competitive examination.

(ii) The Governor of a State is the authority for the purpose of appointment, promotion, posting and transfer, the eligibility is governed by the Rules framed under Articles 234 and 235.

(iii) Under Article 232(2), an Advocate or a pleader with 7 years of practice can be appointed as District Judge by way of direct recruitment in case he is not already in the judicial service of the Union or a State.

(iv) For the purpose of Article 233(2), an Advocate has to be continuing in practice for not less than 7 years as on the cut­off date and at the time of appointment as District Judge. Members of judicial service having 7 years' experience of practice before they have joined the service or having combined experience of 7 years as lawyer and member of judiciary, are not eligible to apply for direct recruitment as a District Judge.

v) The rules framed by the High Court prohibiting judicial service officers from staking claim to the post of District Judge against the posts reserved for Advocates by way of direct recruitment, cannot be said to be ultra vires and are in conformity with Articles 14, 16 and 233 of the Constitution of India.

vi) The decision in Vijay Kumar Mishra (supra) providing eligibility, of judicial officer to compete as against the post of District Judge by way of direct recruitment, cannot be said to be laying down the law correctly. The same is hereby overruled".

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