"What prompted you to become a civil judge? You could have continued as a lawyer, made lucrative money, and then become a District Judge or come to the HC or even the SC directly! Have some guts!", remarked Justice Arun Mishra on Thursday.
The Supreme Court bench comprising Justices Mishra, Vineet Saran and Ravindra Bhat was considering the issue of appointment of Civil Judges to the post of District Judges against the quota reserved for recruitment directly from the Bar.
When an advocate on behalf of the petitioners urged that what with judicial officers not being considered for direct recruitment, "junior" advocates appointed from the bar come to be posted above these senior judicial officers, Justice Bhat observed,
"What do you mean 'junior'? he has practised for 7 years! He has done what you have not! He has run around the court, the registry, he has filed processes, faced judges!"
In respect of the interim view held by Justice Kurian Joseph on the matter, Justice Mishra commented,
"I myself cannot appreciate why Justice Kurian Joseph said so. Even Justice Chelameswar doesn't say that (who, in Vinay Kumar Mishra, held that Article 233(2) only prohibits the appointment of a person who is already in the service of the Union or the State, but not the right of such a person to participate in the selection process)"
On 23 January, 2018, making a reference to a larger bench, Justice Joseph had opined that one major issue arising for consideration is whether the eligibility for appointment as district judge is to be seen only at the time of appointment or at the time of application or both.
On February 15, 2018, he directed the registration of applications for participation in the examination for Higher Judicial Services of the petitioners, ignoring the objections regarding seven years practice and in case they are otherwise eligible as having completed 7 years prior to joining the subordinate judicial services, or in the said service, or as an advocate and as a judicial officer combined.
"The eligibility for appointment will be decided at the time of final hearing of the matter", it was recorded.
"The pendency of this petition before this Court shall not stand in the way of the High Court proceeding with the appointment and making the appointment. However, the same shall be made subject to the result of the pending petition(s)", ordered Justice Joseph subsequently on September 26.
"In case the applicants have completed seven years as Judicial Officers and Advocate put together, they shall be permitted provisionally to participate in the selection to the District Judge Cadre", the judge had declared.
"You can't isolate the tail from the head", articulated Justice Bhat on this segregation of the appointment from the selection, indicating that if one is ineligible, he could not participate in the selection.
"A person in service can also come, a person in practice can also come. Even if it is an excluding, exclusive provision or disqualificatory provision, there is no incongruity. There are two streams. You can't combine the first part with the latter part. All the judgments speak of two sources, they distinguish between the two sources. They don't say overlap the two, they maintain the dichotomy...can something be added in making the interpretation to get an advantage?...these judgments are not holy books, they are not Ramayana or Mahabharata that the court can't look into. Reference is made even of 7-judge bench decisions...none of these judgments say that there is one stream. If it was so there would be no problem. But even Rameshwar Dayal speaks of dichotomy. Even if we fall on Chandra Mohan, it says the judicial services and the bar are the two streams...", explained Justice Mishra.
"While you are in service, you have to follow promotion quota. Nobody is depriving you of anything. You are not being stopped from resigning, returning to practice and then coming back", continued the judge.
"There is a judgment of the Supreme Court on the logic behind bar recruitment. Nobody is provoking it...the bar is the mother", he expressed, adding in a lighter vein,
"Nobody has appeared for the bar people. Only I am speaking"
"The bar is not better. Everybody has their own expertise. Like some are on the Constitutional or the civil side. There are things they can't do. Like I might not have practiced on the service or criminal sides. That is why there are different quotas. What one can do, the other might not be able to...", clarified Justice Mishra.
"If they say there are two sources, they prescribe qualifications for them. Quota is just giving them slots. Some year there is no recruitment from service, some year there is no recruitment from the bar. No judgment says the bar posts may be taken up by in-service candidates...the dichotomy has to be maintained...", continued the judge.
"In the 60s and the 70s, appointments were made directly through interviews. HC judges used to call appropriate persons from the bar and they were appointed after a full court interview. (Justice R. C. Lahoti) was appointed directly (from the bar as a District and Sessions Judge) through interview...bar recruitment was bar recruitment. It was never confused. There is no judgment quashing any such rule. "People understood the law to be like that" he iterated.
It was argued on the petitioners' side that if one has 8 years experience as an advocate prior to becoming a civil judge, why is he, on becoming a judicial officer, being placed in a disadvantageous position as compared to when he was a lawyer
"It is a constitutional limitation. You can't go and challenge provisions of the constitution. You are a judicial officer. You are not a lawyer...According to this, a 23 year old boy who joins as a Civil Judge can take an exam the next day and become the District Judge? The rules can prescribe age, domicile etc, but they can't say this strand will go here and this strand will go there. Then we might as well write off Article 234!", reflected Justice Bhat.