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Judgment
Petitioners who are judicial officers claim that they are entitled to be considered for appointment to the post of District and Session Judges in the
Kerala State Higher Judicial service by direct recruitment.
As per Ext.P1 notification dated 21.11.2017, the High Court of Kerala invited on-line applications for appointment to the post of District and
Sessions Judges under the Kerala State Higher Judicial Service by direct recruitment from the Bar. The qualification prescribed under clause 6(f)
of Ext P1 is the following:
He shall be a practising Advocate having a standing of not less than 7 years of practice as on 1.1.2017.
The petitioners claim that they are serving as judicial officers in the Kerala State Judicial service. Prior to their entry in the judicial service they had
been practising as Advocates for 4 to 6 years and thereafter they have been serving as Munsiff-Magistrates/Subordinate Judge, on appointment
after a due process of selection and they are having experience in the respective posts of Judicial officers for a period between 3 years and 9
years. Based on Ext.P1 notification the petitioners submitted their applications through the web portal, which were rejected for want of the
requisite eligibility criteria.
The District and Sessions Judge (including Additional District and Sessions Judge) comes under category 2 of the Special Rules for Kerala
Higher Judicial Service Rules, as per Rule 2 thereof. Appointment to category (2) shall be made by transfer from category 1, Subordinate
Judges/Chief Judicial Magistrates of the Kerala Judicial Service or by direct recruitment from the Bar. Rule 3 of the Special Rules provides for the
qualifications. clause (f) thereof provides as follows:
(f) he shall be a practising Advocate and should have so practised for a period of not less than seven years"".
The petitioners therefore challenge Rule 3(f) of the Kerala State Higher Judicial Service Special Rules as well as Clause 6(f) of Ext.P1 notification
to the extent it mandates that applicants for appointment as a District and Sessions Judge shall be a practising advocate having a standing of not
less than 7 years.
According to the petitioners, the qualification prescribed in Rule 3(f) of the Special Rules as well as in Ext.P1 notification are contrary to the
provisions contained in Article 233(2) of the Constitution of India, because Article 233 only provides that ""a person not already in the service of
the Union or of the State shall only be eligible to be appointed as 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"". According to the petitioners, their service as judicial officers is also liable to be
reckoned towards the 7 years and these 7 years'' practice cannot be construed as exclusive Bar practice alone. The petitioners claim that the
judicial service rendered by them is not inferior to that of an Advocate who has got 7 years'' of practice and therefore that service is liable to be
reckoned towards the 7 years'' practice as Advocate and they are entitled to be considered for appointment as District and Sessions Judges
through direct recruitment.
The learned Senior Counsel also pointed out that under Article 217 of the Constitution of India, the service as a Judicial Officer could also be
reckoned for appointment as High Court Judge, for computing the period as an Advocate; as provided in the explanation (aa) to Article 217(2).
Therefore, the provisions contained in Article 233(2) has to be construed in tune with that. It is therefore argued that the prescriptions contained in
clause 6(f) of Ext.P1 notification as well as Rule 3(f) of the Special Rules are liable to be modified in tune with Article 233 in the light of Article 217
of the Constitution of India.
Having considered the contentions advanced on behalf of the petitioners, I do not find anything helpful for the petitioners in Article 233(2) of the
Constitution of India, which reads as follows:
A person not already in the service of the Union or of the State shall only be eligible to be appointed as 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.
On a glance at Article 233(2), it can be seen that it deals with the eligibility criteria for a person who is not in the service of Union or State. In that
event that should be one ""who has been for not less than 7 years an Advocate or a pleader"". First of all, the petitioners, who are serving as Judicial
Officers, are in the service of State. Secondly they are not persons ''who have been Advocates or Pleaders''. Admittedly they entered judicial
service at least 3 years ago. It cannot be said that they have been Advocates or Pleaders as on the last date fixed for submitting the applications.
Rule 3(f) only provides for the qualification for appointment by direct recruitment from Bar from among persons, who are practising Advocates.
Ext.P1 application is in tune with Rule 3(f) of the Special Rules. Applications are called for only from those Advocates or Pleaders who are
continuing their practice in the Bar.
Moreover, Article 233(2) specifically provides that a person not already in the service of the Union or of the State shall only be eligible to be
appointed as a District Judge only if he has been for not less than seven years an advocate or a pleader. The term ''Advocate'' is defined under the
Advocates Act to mean ""an advocate entered in any roll under the provisions of this Act"". Advocates continue to be in the rolls of the Bar Council.
The Judicial Officer cannot be said to be an Advocate or Pleader. They do not ""practise or plead"" in the courts. The petitioners are admittedly in
service of the State. Thus Article 233(2) is specifically intended for those who are not in the service of State or Union, which includes judicial
service also. In this context it is relevant to note that the very same issue was the subject matter of consideration before the Apex Court in the
judgment in Satya Narain Singh v. Allahabad High Court [(1985) 1 SCC 225] where the claim of the judicial officers for appointment as District
Judges by direct recruitment was repelled. The Apex Court found that the expressions used in Article 233(2) are ""if he has been for not less than 7
years an Advocate or Pleader"". When present perfect tense is used only those who are presently an Advocate and who continue to be on the rolls
of the Bar Council are eligible. In Deepak Aggarwal v. Keshav Kaushik, (2013) 5 SCC 277, also the Apex Court after considering various
judgments on the issue, held as follows :
From the above, we have no doubt that the expression, ""the service"" in Article 233(2) means the ""judicial service"". Other members of the
service of the Union or State are as it is excluded because Article 233 contemplates only two sources from which the District Judges can be
appointed. These sources are: (i) judicial service; and (ii) the advocate/pleader or in other words from the Bar. The District Judges can, thus, be
appointed from no source other than judicial service or from amongst advocates. Article 233(2) excludes appointment of District Judges from the
judicial service and restricts eligibility of appointment as District Judges from amongst the advocates or pleaders having practice of not less than
seven years and who have been recommended by the High Court as such.
The petitioners are therefore eligible to be considered only in accordance with the Special Rules which provides for promotion.
Article 233(1) provides:
Appointment of district judges:-(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 exercising jurisdiction in relation to such State.
As per Article 233(1), promotion to the post of District Judges and the conditions of service shall be governed by the special rules. There is
nothing unconstitutional in fixing the qualification for appointment from the Bar restricting the eligibility to Advocates alone.
When Article 217(2) specifically provides for reckoning judicial service also along with the number of years of practice as Advocate, there is no
such provision in Article 233(2). This also would indicate that judicial service cannot be reckoned towards the 7 years'' as an Advocate.
There is nothing in Article 233(2) which helps the petitioners to claim appointment by direct recruitment, when there is a specific exclusion for
those who are in service under the State. I do not find any inconsistency between the qualification prescribed in the special Rules and in Article
233(2) of the Constitution of India.
Therefore, I do not find any reason to interfere with either clause 6(f) of Ext.P1 notification or Rule 3(f) of the Special Rules. There is no
illegality or impropriety in the provisions contained either in the Special Rules or in the notification issued in the Special Rules. In the above
circumstances, the writ petition is dismissed.