Can persons in judicial service be appointed district judges by direct recruitment? SC to decide

The Supreme Court today issued notice to the High Courts of Delhi and Allahabad in a slew of petitions praying that persons in judicial service should be allowed to compete for the posts of district judges based on their experience at the Bar, without having to go through ‘promotions through the rank’..A Bench of Chief Justice TS Thakur and R Banumathi J. heard a batch of cases and issued notice..Senior Advocate Dushyant Dave was among the lawyers who appeared for the petitioners..In July 2015, the Court had issued notice in a similar petition filed by one Dheeraj Mor. Subsequently, similar petitions came to be filed; these included SLPs against a judgment of the Delhi High Court and writ petitions..The petitioners have sought to be appointed as district judges on the ground that they fulfil the criteria of seven years’ experience prescribed by Article 233 of the Constitution of India..The case involves an important question of law: whether Article 233 (2) of the Constitution of India debars persons already in judicial service for appointment as district judges by way of direct recruitment and not promotion..Dheeraj Mor has contended that as per the decision in Rameshwar Dayal’s case, for a person to be appointed as a district judge from the Bar, he need not be an advocate ‘in presenti.’ The petition states that the High Court in its judgement, wrongly concluded that,.“..as per Article 233 of the Constitution, person in judicial service can be appointed as a district judge by way of promotion only…..the High Court in violation of Chandra Mohan’s case has wrongly interpreted that Article 233 of the Constitution by holding the same to have compartmentalization of the said two sources by way of appointment by promotion and appointment by way of direct recruitment. The aforesaid compartmentalization is neither existent nor warranted in the said Article…it merely provides for the appointment of district judges irrespective of either of the aforesaid methods/ modes.”.Mor has submitted that since some district judges are appointed from the lower judiciary, such persons can be appointed as district judges irrespective of the method of appointment i.e. either by promotion or by direct recruitment. The Petitioner has contended that the High Court wrongly interpreted the negative covenant in Article 233(2) by holding that the said covenant would mean that a person who is in judicial service will not be eligible to be appointed as a direct recruit..As per the petition,.“…the provision of Article 233(2) of the Constitution of India makes it abundantly clear that a person not already in service of the Union or of a State becomes eligible for appointment as a district judge only if he has been an advocate or a pleader for at least seven years. However, if a person, who had already been an advocate or a pleader for at least seven years before joining judicial service, he does not become disqualified to be appointed as a district judge merely he has joined the said service. .After having gained the experience of at least seven years as an advocate or a pleader and then joining the judicial service cannot be considered as a disqualification. Once a person is eligible for appointment as a district judge, he/she does not lose his/her qualification simply by joining the judicial service. By joining the judicial service after seven years of practice, a person becomes more qualified and experienced as compared to a person who has simply seven years of experience as an advocate or a pleader.”.Justice Thakur today remarked that the case involves an ‘interpretation of law’ and proceeded to issue notice in the remaining 7 petitions..All the cases have now been tagged together and will be heard in September. The court also recorded in its order that the eventual recruitment made by the High Courts would be subject to the decision of the court.