Appointment of district judges from the Bar: Rule 3(2)(f) of Kerala Higher Judicial Service Rules challenged in SC

Murali Krishnan July 29 2019
district judges

A petition has been filed in Supreme Court regarding the eligibility of judges from the subordinate judiciary to be appointed as district judges based on their experience at the Bar.

In this regard, the petition has challenged Rule 3(2)(f) of the Kerala State Higher Judicial Service Special Rules, 1961, which bars in-service candidates from being appointed as district judges based on their antecedent practice as an advocate.

The petition has been filed through advocate Aljo Joseph by five judicial officers who before entering judicial service had experience at the Bar for seven years or more.

By way of background, the High Court of Kerala issued a notification on November 21, 2017 inviting applications for the post of District and Sessions Judge. The petitioners, who are judges in the subordinate judiciary, submitted applications before the Registrar (Subordinate Judiciary), High Court of Kerala, seeking permission to apply for the post. The applications of the petitioners and 64 other judicial officers were allowed by the High Court by its office memorandum dated December 16, 2017.

In view of the permission accorded as per the office memorandum, the first four petitioners applied in the prescribed form for appointment to the post of District and Sessions Judge. The fifth petitioner submitted an application on the strength of an interim order of the Kerala High Court.

Thus, the applications submitted by the petitioners were accepted and the Registrar General of the Kerala High Court issued admission tickets for the preliminary examination. Thereafter, the result of the preliminary examination was published.

Meanwhile, some of the advocate candidates approached the Kerala High Court. Pursuant to an interim order dated December 10, 2018, the High Court directed the Registrar (Recruitment and Computerisation) of the High Court to include additional candidates from among the practising advocates equal to the number of judicial officers (2 star and 3 star).

Thereafter, main written wxamination and viva-voce were conducted, and a list of eligible candidates in the order of their merit was published on June 7, 2019. The petitioners were selected in the list.

However, on the very next day, a new list of eligible candidates for appointment to the post of District and Sessions Judge was published. The names of the petitioners were from that final select list and the persons who were not in the merit list published on June 7 were included.

The candidates included in the select list of June 8 were included as candidates in pursuance of an interim order passed on December 10, 2018.

Aggrieved by the exclusion of the petitioners from the final list, petitioner no. 3 submitted a representation to the High Court. The High Court by its reply, informed petitioner no. 3 that the representation was rejected and that the claim of the applicant was untenable in view of the order of the Supreme Court of May 10, 2019 in the case of Dheeraj Mor.

The petitioner has claimed that the fresh list of selected candidates also includes advocates who are ineligible and who have not secured sufficient marks in the examination. This fresh list has been published based on an incorrect understanding of the Supreme Court order of May 10, 2019, it has been contended.

It is the petitioner’s case that the order passed by the Supreme Court on May 10, 2019 stated that if any practicing advocates have been found selected for appointment, they can be appointed subject to the outcome of the pending proceedings.

But the High Court of Kerala without adhering to the spirit of that order, declared all ineligible candidates those were permitted to participate in the main examination pursuant to the interim order dated of December 10, 2018 in WP(C) No: 39543 of 2018 passed by the High Court and they have now been recommended to be appointed as District and Sessions Judge.

The petitioners have contended that ineligible candidates who are not qualified in the preliminary examination are now included in the final list and the High Court has proceeded with the process of appointment. This illegality has been justified under the pretext of the Supreme Court order of May 10, 2019

The petitioner has therefore sought quashing of the list published on June 8.

Further, the petitioners have also made some significant submissions on the larger issue of appointment of in-service candidates as District judges.

They have challenged the Constitutionality of Rule 3(2)(f) of the Kerala State Higher Judicial Service Special Rules, 1961 as ultra vires Article 233(2) of the Constitution.

As per the candidate for appointment as District and Sessions judge from the bar “shall be a practicing Advocate and should have so practiced for a period of not less than 7 years.”

Article 233(2) of the Constitution of India makes it clear that a person not already in the 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, a person, by virtue of his antecedent practice as an Advocate and period of Judicial service which add up to “not less than seven years”, does not earn any disqualification to be appointed as a District Judge, the petitioners have submitted.

He/She does not lose his/her qualification simply by opting to join the service after some years of practice. A person in fact becomes more qualified and experienced as compared to a person who has simply put in seven years of practice as an Advocate or a Pleader. It is, therefore, the argument of the petitioners that the intention of the framers of the Constitution was not to discourage the experienced person/s from joining service of the Union or of a State by disqualifying them for appointment as District Judges.

On the scope of the expression “not being in the service of the Union or State” in Art 233 (2), the petitioners state that it can only be considered as a precautionary measure for separation of judiciary from the executive. Further,  judicial officers in the subordinate judiciary cannot be treated as persons in the service of the State Because the Kerala Judicial Service Rules, 1991 expressly confers all the powers to the High Court of Kerala to maintain and control the subordinate judiciary.

On these grounds, the petitioners have sought a direction to quash Rule 3(2)(f) and to hold that the petitioners are qualified as per Article 233 of the Constitution of India and consequently appointed petitioners as District and Sessions Judge in Kerala Higher Judicial Service.

The issue regarding 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 is already pending before the Supreme Court. Those matters are listed for tomorrow.