Smt. Madhu Khanna vs High Court Of Delhi
2007 Latest Caselaw 1331 Del

JUDGMENT

A.K. Sikri, J.

1. The petitioner is a judicial officer in the Haryana State Judicial Services. She joined the said service in the Year 1997. Before her selection in the said Service, the petitioner was a practicing Advocate. She practiced for seven years i.e. from 1990 to 1997. As of today she continues to be in the judicial service of the State of Haryana as a Civil Judge-cum-Judicial Magistrate.

2. Delhi High Court has issued advertisement inviting the applications for direct recruitment to Delhi Higher Judicial Services and the preliminary written test for this purpose is scheduled for 22.7.2007. Advertisement was issued in May, 2007 and pursuant to this advertisement, the petitioner also applied to compete for this service. However, she has received communication dated 16.7.2007 intimating her that she does not fulfill the eligibility criteria for admission to the said examination. Challenging this decision of the High Court, present petition is preferred on the ground that the petitioner fulfills all the eligibility conditions and therefore wrongly denied the admission ticket for appearing in the ensuing examination.

3. Following eligibility conditions are prescribed in the advertisement issued by the High Court:

A candidate shall be eligible to appear in the examination if he/she is (a) citizen of India; (b) a person who has practiced as an advocate for not less than 7 years; (c) a person who has attained the age of 35 years but has not attained the age of 45 years as on 1st January, 2007.

Same conditions are reiterated in the instructions issued to the candidates for appearing in the examination.

4. There is no denial of the fact that the petitioner is a citizen of India. It is also not in dispute that the petitioner is above the age of 35 years and below 45 years of age as she is 41 years of age. Therefore, entire dispute is on the eligibility condition (b) stipulated above namely whether the petitioner is a person who has practiced as an Advocate for not less than seven years. Before adverting to this issue, it would be apposite to take note of the relevant provisions of Delhi Higher Judicial Services and also Article 233 of the Constitution of India which is the grund norm for appointment to the post of District Judges. Eligibility mentioned in para (b) of the advertisement is also to be read in that context as it is based on the aforesaid provision.

5. Rules 7 of the Delhi Higher Judicial Services Rules, 1970 deals with the recruitment to the said service and reads as under:

7. Regular Recruitment: Recruitment after the initial recruitment shall be made:

(**) (a) by promotion on the basis of selection from members of the Delhi Judicial Service, who have completed not less than 10 years of service in the Delhi Judicial Service;

(b) by direct recruitment from the Bar. Provided that not more than 1/3rd of the (***) posts in the service shall be hold by direct recruits.

6. Article 233 of the Constitution, which is contained in Chapter VI, dealing with 'Subordinate Courts' is to the following effect:

233. 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 Court exercising jurisdiction in relation to such State.

(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed 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.

7. Rule 7(a) has its genesis in Clause (1) of Article 233 and Rule 7(b) takes its flavour from Clause (2) of Article 233. Since the rules as well as advertisement in question have to be in conformity with the provision of Article 233 of the Constitution, it would be advisable to initiate discussion by interpreting this provision of the Constitution.

8. This article deals with the appointment of District Judges. There are two sources prescribed. Clause (1) of Article 233 talks of appointment as District Judge by 'posting and promotion' and this would necessarily mean that the persons, who are already in judicial service of the State, are eligible for appointment as District Judges by posting and promotion and this appointment has to be by the Governor of the State in consultation with the High Court. In this case we are not concerned with the appointment to the Higher Judicial Service under Clause (1). The mode of selection for which the advertisement is issued is concededly under Clause (2) of Article 233 of the Constitution of India.

9. Clause (2) of Article 233 deals with direct recruitment to the post of District Judge (Higher Judicial Service in the instant case) in contra- distinction to the method of promotion from amongst in-service judicial officers. It lays down two conditions of eligibility which a candidate has to fulfill before he/she can aspire to become District Judge:

(a). a person not already in service of Union or the State.

(b). he has been, for not less than seven years, an Advocate or a pleader.

10. It was not disputed before us that the expression "Service of the Union or the State" occurring in this clause talks of service as a Judicial Officer. This aspect, in fact, was conclusively determined by the Constitution Bench of the Supreme Court way back in the year 1966 in the case of Chandra Mohan v. State of Uttar Pradesh and Ors. AIR 1966 SC 1987. The operative portion of the said judgment giving this interpretation reads thus:

The setting, viz., the chapter dealing with subordinate courts, in which the expression ``the service'` appears indicates that the service mentioned therein is the service pertaining to courts. That apart, Article 236(b) defines the expression ``judicial service'` to mean a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge. If this definition, instead of appearing in Article 236, is placed as a clause before Article 233(2), there cannot be any dispute that ``the service'` in Article 233(2) can only mean the judicial service. The circumstance that the definition of ``judicial service'` finds a place in a subsequent Article does not necessarily lead to a contrary conclusion. The fact that in Article 233(2) the expression ``the service'` is used whereas in Arts. 234 and 235 the expression ``judicial service'` is found is not decisive of the question whether the expression ``the service'` in Article 233(2) must be something other than the judicial service, for, the entire chapter is dealing with the judicial service. The definition is exhaustive of the service. Two expressions in the definition bring out the idea that the judicial service consists of hierarchy of judicial officers starting from the lowest and ending with district judges. The expressions ``exclusively'` and ``intended'` emphasise the fact that the judicial service consists only of persons intended to fill up the posts of district judges and other civil judicial posts and that is the exclusive service of judicial officers. Having defined ``judicial service'` in exclusive terms, having provided for appointments to that service and having entrusted the control of the said service to the care of the High Court, the makers of the world Constitution not have conferred a blanket power on the Governor to appoint any person from any service as a district judge.

This position was reiterated by the Supreme Court in the case of Satya Narain Singh etc. v. The High Court of Judicature at Allahabad and Ors. etc. .

11. The first question which needs determination is as to whether a person who is already in judicial service can be eligible for appointment as District Judge under Clause (2) of Article 233. Answer has to be in the negative. The opening words of Clause (2) of Article 233 of the Constitution clearly debar a person from competing for appointment as District Judge through this channel as is clear from the very language thereof which reads "a person not already in service of the Union or of the State shall only be eligible".

12. Thus, it is made abundantly clear that a person to become eligible has to satisfy the conditions that he/she is not already in service of Union or the State i.e. in Judicial Service of the State in view of the aforesaid provision. Even this aspect has been considered by the Supreme Court in Satya Narain Singh etc. (supra). That was the case where the question of appointment of District Judge by direct recruitment came up for consideration and the members of the Uttar Pradesh Subordinate Judicial Service wanted to be considered against the said direct recruitment. The Supreme Court held that a plain reading of both the clauses of Article 233 namely Clauses (1) and (2) showed that while the second clause of Article 233 was applicable only to those who were not already in service, the first clause was applicable to those who were already in service. On these terms, it was held that the members of Subordinate Judicial Service were ineligible for appointment. To arrive at this conclusion, as mentioned above, the Supreme Court referred to its earlier judgment of Constitution Bench of the Supreme Court in Chandra Mohan (supra). We may also quote, for our benefit, following extract from this judgment: "5. Posing the question whether the expression "the service of the Union or of the State" meant any service of the Union or of the State or whether it meant the judicial service of the Union or of the State, the learned Chief Justice emphatically held that the expression "the service" in Article 233(2) could only mean the judicial service. But he did not mean by the above statement that persons who are already in the service, on the recommendation by the High Court can be appointed as District Judges, overlooking the claims of all other Seniors in the Subordinate Judiciary Contrary to Article 14 and Article 16 of the Constitution."

13. Since the petitioner is already in judicial service, albeit in State of Haryana, she becomes ineligible to apply as a direct recruit under Clause (2) of the Article 233.

14. Even second condition laid down in Clause 2 is not fulfillled by the petitioner. The learned Counsel for the petitioner argued strenuously to the effect that the expression used in Article 233(2) i.e. "he has been for not less than seven years an advocate or a pleader" would indicate that a person should have practiced for seven years and this period may be in past as well and it is not necessary that the said person or candidate should be a practicing advocate as well on the date of making the application. We do not read the said provision in the manner sought to be read by the learned Counsel for the petitioner and here again we have the support of the view taken by the Supreme Court on this very aspect.

15. We have already reproduced Rule 7 of Delhi Higher Judicial Service Rules which inter alia states that there can be a direct recruitment "from the Bar". Thus, it lays down the second channel of recruitment, namely, by direct recruitment from the Bar. This rule is in consonance with Article 233 of the Constitution of India as held by the Supreme Court in the case of Sushma Suri v. Govt. of National Captial Territory of Delhi and Anr. . Therefore, there cannot be any quarrel about the language of this Rule. In para 3 of the said judgment, the Supreme Court observed "Obviously, this Rule has been framed to be in conformity with Article 233 of the Constitution". In that judgment, the Court was concerned with the meaning of the expression "advocate" occurring in Article 233(2) of the Constitution and "from the Bar" as envisaged in Rule 7 of the aforesaid Rules. We may point out at this stage that Sushma Suri was working as Additional Government Advocate in the Government of India. She was also Advocate-on-Record of the Supreme Court. However, she was not considered for appointment as a District Judge under direct recruitment quota on the ground that she was not an Advocate and from the Bar and she was in the Government employment. In para 3, the Supreme Court explained the question that was to be determined in the aforesaid facts and we reproduce the following portion which would be relevant for our purposes in this case:

Referring to the expression "service" in Article 233(2) it has been held by this Court in Chandra Mohan v. State of U.P. (supra) and Satya Narain Singh v. High Court of Judicature at Allahabad that it means "judicial service". However, it is not the contention either before the High Court or before us that the appellant is in judicial service. On the other hand the contention is that she has more than seven years' experience as an advocate and, therefore, is fully eligible to be appointed to the Higher Judicial Service and the High Court was not justified in not considering her case for appointment. Hence we have to examine the only question whether the appellant is an "advocate" for the purpose of Article 233(2) of the Constitution and "from the Bar" as envisaged in Rule 7 of the Rules.

16. The Court clearly stated that since she was not in Judicial Service so therefore she was not ineligible as far as first eligibility condition is concerned. We have quoted this portion to highlight our first conclusion namely if a person is in judicial service he/she would become ineligible for appointment under Clause (2) of Article 233 of the Constitution of India.

17. Discussing the meaning of the expression "from the Bar" the Court held that he/she should be a person who is actually practicing in courts of law as pleaders or advocates. This would be clear from the portion contained in para 9 and 11 of the judgment. Learned Counsel for the petitioner tried to argue that what is observed in these paras is only an obiter and, therefore, should not be taken as a binding precedent. We are not inclined to agree with this submission of the learned Counsel. As already pointed out above, the Supreme Court was directly concerned with the interpretation of the words "from the Bar" and in that context made the aforesaid observations and, therefore, it cannot be treated as obiter. That apart, it is trite law that even the obiter observations of this nature made by the Supreme Court would be binding on the High Court.

18. In view of the aforesaid, we are of the opinion that candidature of the petitioner is rightly rejected by the High Court as petitioner is not eligible to appear in the examination under direct recruitment quota from the Bar since she is a member of judicial service in a state. We are, therefore, constrained to dismiss this writ petition. However, there shall be no orders as to cost.

19. The copy of the order be given dusty under the signature of the Court Master.