Holding

Clause (2) of Article 233 applies only to persons not already in the Union or State judicial service; therefore, members of the judicial service are ineligible for direct recruitment as district judges on the basis of the seven‑year bar requirement.

Summary

The petitioners, members of the Uttar Pradesh Judicial Service, applied for direct recruitment to the Uttar Pradesh Higher Judicial Service, claiming they had completed seven years of practice at the bar before joining the service and thus were eligible under Article 233(2) of the Constitution. The Allahabad High Court held that members of the subordinate judicial service were ineligible for such direct recruitment. The Supreme Court examined the two clauses of Article 233, interpreting the first clause as governing appointments of persons already in the judicial service (requiring only consultation with the High Court) and the second clause as applying only to persons not already in service, imposing the seven‑year bar practice requirement. Consequently, the Court held that the petitioners could not be appointed by direct recruitment, affirming the High Court's decision and dismissing the writ petitions.

Issues considered

Whether Article 233(2) of the Constitution applies to persons already in the judicial service for appointment as district judges by direct recruitment.
Whether the seven‑year practice as an advocate or pleader is a mandatory qualification for such persons.

Legislation cited

Constitution of Indias. Article 233

Subjects

Article 233District Judge appointmentJudicial ServiceDirect recruitmentEligibilityConstitutional interpretationSeven years practiceHigh Court consultation

Judgment

112

t '
A SATY A NARAIN SINGH ETC. ETC.
•
v.

B THE HIGH COURT OF JUDICATURE
AT ALLAHABAD & ORS., ETC. ETC.

November 27, 1984

[0. CHINNAPPA REDDY, A.P. SEN AND E.S. VENKATARAMAJ:ll, JJ.J
c
Constitution of India - Article 233 Appointment of District Judges-Inter-
pretation of - Persons already in service cannot be appointed District Judges by
direct recruitment. Clause(2) ofart.233 is applicable only to persons not already
in the Service of the Union or of the State - Service here means judicial service_
Requirement of seven years practice at bar necessary only in case of persons not
D a/ready in service.

Tn response to an adverti sment by the High Court of Allahabad, the
petitioners, who were members of the Uttar Pradesh Judicial Service,
applied to be appointed by direct recruitment to the Uttar Pradesh Higher
Judicial Service. The petitioners claimed that they had acquired 7 years
E of practice at the bar even before their appointment to that Service. The
High Court held that n1embers of the Uttar Pradesh Judicial Service
were not eligible to be appoin!ed by direct recruitment to Uttar Pradesh
Higher Judicial Service. Before this Court the petitioners submitted ,
that a construction of Art. 233 of the Constitution which would render
a member of the Subordinate Judicial Service ineligible for appointment
F
to the Higher Judidal Service by direct recruitment because of the addi-
tional experience ga•ned by him as a Judicial officer would be both
unjust and paradoxical.

Affirming the decision of the High Court and dismissing the
G petitions,

HELD: Two points straightway project themselves when the two
clauses of Art. 233 of the Constitution are read: The first clause deals
with 'appointments of persons to be, and the posting and promotion of,
district judges in any State' while the second clause is confined in its
H application to persons 'not al ready in the service of the Union or of the
s. N. SINGH v. f!IGH COURT, ALLAH,\BAP (Chlnnappa Rtddy, J.) 1 I3
' j

State'. 'Service of the Union or of the State, has been interpreted by A
this Court to mean judicial service. While the first clause n1akes
consultation by the Governor of the State with the High Court necessary,
the second clause requires that the High Court must recommend a
person for appointment as a District Judge. It is only in respect of
the persons covered by the second clause that there is a requirement
that a person shall be eligible for appointment as District Judge if he
has been an advocate or a pleader for not less than 7 years. In other B
words, in the case of candidates who are not members of a Judicial
Service they must have been advocates or pleaders for not (less than 7
years and they have to be recommended by the High Court before they
may be appointed as District Judges, while in the case of candidate~ who
are members of a Judicial Service the 7 years rule has no application
f but there has to be consultation with the High Court. A clear distinction
is made between the two sources of recruitment and the dichotomy is c
maintained. The two streams are separate until they come together by
appointment. [116 D-0] ,

Ramtshwar Dayal v. Stat• of Punjab, [1961] 2 SCR 874 and Chander Mohan
v. Stat• ofUttar Praduh, [1967] I SCR 77, referred to.
D
ORIGINAL JURISDICTION: Writ Petition Nos. 16087 of 1984,
728 ofl981 and 15926of1984.

Under Article 32 of the Constitution ofJndia.

E
L. N. Sinha, Mrs. Shyamla Pappu, Arvind Kumar, R.D.
Upadhya and C.K. Ratnapatkhi for the Petitioner in W.P. Nos.
15926/84 & 16087 /84.

K.K. Venugopal, Arvind Kumar and Mrs. Laxmi Arvind for
the Petitioner in WP. No. 728 of 1981. F

Gopal Subramanlam and Mrs. Shobha Dikshit for the Respon-
• dents.

G
The Judgment of the Court was delivered by

CmNNAPPA RIIDPY, J. The petitioners in the several writ
petitions now before us as well as the appellants in Civil Appeal
No. 548 of 1982 and the petitioners in Writ Petition Nos. 6346-
H
114' SUPREME COURT RBPORTS • (1985) 2 S.C.R .•
I '
A 6351 of 1980 which we dismissed on 11th October, 1984 were
members of the Uttar Pradesh Judicial Service in 1980 when all of
them, in response to an advertisement by the High Court of
Allahabad, applied to be appointed by direct recruitment to the
Uttar Pradesh Higher Judicial Service. They claimed that each of
B them had completed 7 years of practice at the bar even before
their appointment to the Uttar Pradesh Judicial Service and were, t
therefore, eligible to be appointed by direct recruitment to the
Higher Judicial Service. As there was a question about the eligi-
bility of members of the Uttar Pradesh Judicial Service to appoint-
ment by direct recruitment to the Higher Judicial Service, some of
c them filed writ petitions in the Allahabad High Court the said peti- '
tions were dismissed and it was held that members of the Uttar
Pradesh Judicial Service were not eligible to be appointed by direct
recruitment to the Uttar Pradesh Higher Judicial Service. Civil
Appeal No. 548 of 1982 was filed in this Court after obtaining spe-
cial leave under Art. 136 of the Constitution. By virtue of the inter-
D
im order passed by this Court, members of the Uttar Pradesh Judi-
cial Service, who desired to appear at the examination and selection
were allowed to so appear, but the result of the selection was made
subject to the outcome of the civil appeal and the writ petitions in
this Court. The civil appeal and some of the writ petitions were
dismissed by us on October 11, 1984. The remaining writ petitions
are now before us. Shri Lal NaraiH Sinha and Shri K.K. Venu-
gopal, Learned Counsel who appeared for the petitioners, tried to
persuade us to re-open the issue, which had been concluded by our
decision on October 11, 1984. Having heard them, we are not
satisfied that there is any reason for re-opening the issue. When
F we dismissed the civil appeal and the writ petitions on the former
occasion, we were content to merely affirm the judgment of the
High Conrt of Allahabad without giving our own reasons. In view
of the arguments advanced, we consider that it may be better for
us to indicate briefly our reasons. •
G
The submission of Shri Lal Narain Sinha and Shri K.K. Venu-
gopal was that there was no constitutional inhibition against
members of any Subordinate Judicial Service seeking to be appoin-
ted as District Judges by direct recruitment provided they had com-
pleted 7 years' practice at the bar. The submission of the lear11,ed
H counsel was that members of the Subordinate Judiciary, who had
s. N. SINGH v. HIGH COURT, ALLAHABAD (Chinnappt1 Reddy,!.) 115

put in 7 years' practice at the bar before joining the Subordinate A
Judicial Service and who had gained experience as Judicial Officers
by joining the Subordinate Judicial Service ought to be considered
better fitted for appointment as District Judges because of the
additional experience gained by them rather than be penalised for
< j
that reason. The learned counsel submitted that a construction of
Art. 233 of the Constitution which would render a member of the B
Subordinate Judicial Service ineligible for appointment to the
Higher Judicial Service because of the additional gained by him as
a Judicial Officer would be both unjust and paradoxical. It was
also suggested that it would be extremely anomalous if a member
• of the Uttar Pradesh Judicial Service who, on the present construc·
tion of Art. 233 is ineligible for appointment as a District Judge by
c
direct recruitment, is nevertheless eligible to be appointed as a
judge of the High Court by reason of Art. 217(2) (aa.) On the other
hand Sri Gopala Subramanium, learned counsel for the respondent
urged that there was a clear demarcation in the Constitution
betweeen two sources of recruitment namely : (1). those who were D
in the service of a State or Union and (2). those who were not in
such service. He contended that the second clause of Art. 233
was attracted only to the second source and in respect of candi-
dates from that source the further qualification of 7 years as an
advocate or a pleader was made obligatory for eligibility. Accor-
ding to Mr. Gopala Subramanium, a plain reading of both the . E
clauses of Art. 233 showed that while the second clause of Art. 233
was applicable only to those who were not already in service, the
first clause was applicable to those who were already in service.
He urged that any other construction would lead to anomalous
and absurd consequences such as a junior member of the Subordi-
F
-i nate Judicial Service taking a leap, as it were, over senior members
of the Judicial Service with long records of meritorious service.
Both sides relied upon the decisions of this Court in Rameshwar
Dayal v. State of Pmifab(1) and Chander Mohan v. State of Uttar
Pradesh(').
G

(1) (1961) 2 S.C.R. 874.
(2) (1967( 1 S.C.R. 77.
H
116 SUPREME COURT REPORH (I 985J '2. S.C.\\.
I •
A Article 233 is as follows:·
"233(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;
B 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 appoin·
ted a district judge if he has been for not Jess
than seven years as an advocate or a pleader
c and is recommended by the High Court for •
appointment."
Two point straightway project themselves when the two clauses
of Art. 233 are read :-
The first clause deals with 'appointments of persons to be, and
D the posting and promotion of, district judges in any State' while
the second clause is confined in its application to persons 'not
already in the service of the Union or of the State'. We may
mention here that 'Service of the Union or of the State' has been
interpreted by this Court to mean judicial service. Again while
the first clause makes consultation by the Governor of the State
E with the High Court necessary, the second clause requires that the
High Court must recommend a person for appointment as a Dis-
trict Judge. It is only in respect of the persons covered by the
second clause that there is a requirement that a person shall be
eligible for appointment as District Judge if he has been an
advocate or a pleader for not Jess than 7 years. In other words,
F in the case of candidates who are not members of a Judicial Service
they must have been advocates or pleaders for not less than 7 years
and they have to be recommended by the High Court before they
may be appointed as District Judges, while in the case of candi-
dates who are members of a Judicial Service the 7 year; rule has no
application but there has to be consultation with High Conrt. A
G
clear distinction is made between the two sources of recruitment
and the dichotomy is maintained. The two streams are separate
nntil they come together by appointment. Obviously the same
slip cannot sail both the streams simultaneously. The dichotomy ••
is clearly brought out by S.K. Das, J. in Rameshwar Dayal v.
H State of Punjab (supra) where he observes :
s. N. SINGll v. HIGH COURT, ALLAHABAD (Chinnappa Reddy, J.) 11?
" ... Article 233 is a self contained provision regarding A
the appointment of District Judges. As to a person who
is already in the service of the Union or of the State, no
special qualifications are laid down and under cl. (I) the
Governor can appoint such a person as a district judge in
consultation with the relevant High Court. As to a
B
person not already in service, a qualification is laid down
in cl. (2) and all that is required is that he should be an
advocate or pleader of seven years' standing."
Again dealing with the cases of Harbans Singh and Sawhney it was
observed, "We consider that even if we proceed on the footing
• that both those persons were recruited frum the Bar and their c
appointment has to be tested by the requirements of Clause(2), we
must hold that they fulfilled those re.quirements". Clearly the
Court was expressing the view that it was in the case of recruitment
from the Bar, distinguished from Judicial Service that the require·
ments of Cl. (2) had to be fulfilled. We may also add here earlier D
the Court also expressed the view, " ...we do not think that Cl. (2)
of Art. 233 can be interpreted in the light of the Explanation added
to Articles 124 and 217."
Jn Chandra Mohan v. State of Uttar Pradesh (supra) Subba
Rao, C.J. after referring to Articles 233, 234, 235, 236 and 237
E
stated,-

"The gist of the said provisions may be stated thus:
Appointments of persons to be, and the posting and pro-
motion of, district judges in any State shl41 be made by
the Governor oi the State. There are two sources of
recruitment, namely, (i) service of the Union or of the State F
and (ii) membeis of Bar. The said judges from the first
source are appointed in consultation with the High Court
and those from the second source are appointed on the
recommendation of the High Court. But in the case of
appointments of persons to the judicial service other than
G
as district judges, they will be made by the Governor of
the State in accordance with rules framed by him in
consultation with the High Court and the Public Service
Commission. But the High Court has control over all
the district courts and courts subordinate thereto, subject
to certain prescribed limitations."
its si:Ji>t>.EME COURT REPORTS h985l i s.c.ll
A Subba Rao, CJ. then proceeded to consider whether the Govern-
ment could appoint as district judges persons from services other
than the judicial service. After pointing out that Art. 233(1) was a
declaration of the general power of the Governor in the matter of
appointment of district judges and he did not lay down the qualifica-
tions of the candidates to be appointed or denoted the sources r '
B from which the recruitment had to be made, he proceded to state,

"But the sources of recruitment are indicated in cl. (2)
thereof. Under cl. (2) af Art. 233 two sources are given
namely, (I) persons in the service of the Union or of the
State, and (ii) advocate or pleader."
c •
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 Art. 233(2) could only mean the judi-
D cial 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 Con-
trary to Art.14 and Art. 16 of the Constitution.

E Thus we see that the two decisions do not support (be conten-
tion advanced on behalf of the petitioners but, to the extent that
they go, they certainly advance the case of the· respondents. We
therefore, see no reason to depart from the view already taken by
us and we accordin!fy dismiss the writ petitions.

H.S.K. Petitions dismissed.