R. Poornima vs Union Of India on 4 September, 2020


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Supreme Court of India

R. Poornima vs Union Of India on 4 September, 2020

Author: Hon’Ble The Justice

Bench: Hon’Ble The Justice, A.S. Bopanna, V. Ramasubramanian

                                                                                 REPORTABLE

                                   IN THE SUPREME COURT OF INDIA
                                        ORIGINAL JURISDICTION


                              WRIT PETITION (CIVIL) NO. 1172 OF 2019




          R. POORNIMA AND ORS.                                              … PETITIONER(S)


                                                     VERSUS


          UNION OF INDIA AND ORS.                                          …RESPONDENT(S)



                                               JUDGMENT

S. A. Bobde, CJI.

1. Persons who were appointed as District Judges (Entry Level) by

way of direct recruitment vide a Government Order G.O. Ms. No.

170, Home Department dated 18.02.2011 in the Tamil Nadu State

Judicial Service have come up with this Writ Petition seeking the

following reliefs:

“(a) Issue a Writ in the nature of a Writ of Certiorarified
Mandamus or any other appropriate Writ, Order or Orders,
Signature Not Verified

Digitally signed by
Directions, to call for records relating to the last list of
Sanjay Kumar
Date: 2020.09.04
15:25:56 IST
Reason: names recommended by the Hon’ble Chief Justice of High
Court of Madras to the Hon’ble Chief Justice of India for

1
appointment as Judges of Madras High Court and quash
the same in so far as it relates to the names of
Respondents No. 5 to 23 herein and consequently direct
the Hon’ble Collegiums of the Madras High Court to
consider the names of the Petitioners also for appointment
as High Court Judges;

OR

(b) Issue a Writ in the nature of Writ of Mandamus or
any other appropriate Writ, Order or Orders, Directions,
directing the Respondents No. 1 to 4 to return the last list
of names for appointment as Judges of High Court,
Madras recommended by the Hon’ble Chief Justice of High
Court of Madras to the Hon’ble Chief Justice of India;

AND

(c) Pass such further or other Order or Orders that this
Hon’ble Court may deem fit and proper in the facts and
circumstances of the case.”

2. On 06.12.2019, this Court issued notice restricted only to one

question. The order passed on 06.12.2019 is self­explanatory and

hence it is reproduced as follows:

“At the request of Shri Rakesh Dwivedi, learned
senior counsel appearing on behalf of the petitioners,
prayer ‘A’ is allowed to be deleted.

Issue notice restricted to the question of the
entitlement of the petitioners to be considered by virtue of
having put in 18 years, as claimed.

2

Dasti service, in addition, is permitted.”

3. We have heard the learned counsel for the parties.

4. The Petitioners as well as the Respondent Nos. 24 to 29 were

duly selected and appointed as District Judges (Entry Level) by way

of direct recruitment, vide a Government Order in G.O.Ms.No. 170,

Home Department, dated 18.02.2011. Therefore, obviously, they

have not completed 10 years of service as Judicial Officers, as on

date. But at the time of their appointment as District Judges, the

Petitioner Nos. 1 to 6had already practiced for more than 10 years as

advocates, the Petitioner No. 7 had practiced as advocate for 9 years

and 10 months and Petitioner No. 8 had practiced for 8 years and 6

months, after getting enrolled on the rolls of the Bar Council of

Tamil Nadu and Puducherry.

5. In the cadre of District Judges, the Petitioners and Respondent

Nos. 24 to 29 are the senior­most, as seen from the annual list of

officers released by the High Court. The seniority of direct recruits

like the Petitioners herein over the promotees, was also reinforced by

the judgment of the Division Bench of the Madras High Court in Writ

Petition No. 20069 of 2014, by judgment dated 26.02.2015.

3

6. The short grievance of the petitioners is that despite being the

senior­most in the cadre of District Judges, they have been

overlooked and their juniors now recommended for elevation to the

High Court as Judges. This, according to the Petitioners, was done

by the Collegium of the High Court solely on the application of

Explanation (a) under Article 217(2) of the Constitution of India. The

contention of the Petitioners is that to determine the eligibility of a

person, sub­clauses (a) and (b) of clause (2) of Article 217 together

with Explanations (a) and (aa) should be applied simultaneously.

7. In simple terms, the Petitioners want the experience gained by

them as advocates to be clubbed together with the service rendered

by them as Judicial Officers, for determining their eligibility. Once

this clubbing is allowed, the Petitioners would like to take advantage

of their settled seniority position in the cadre of District Judges, over

and above that of Respondent Nos. 5 to 23. In other words, the

Petitioners want the best of both worlds.

8. Before proceeding further, we must note that the Respondent

Nos. 5 to 23 were appointed as Judicial Officers in the cadre below

that of District Judges. After a long service, they have gained

promotion to the post of District Judges. But their promotion

happened after the date on which the petitioners were directly

4
recruited as District Judges. This is how and why the petitioners

became seniors to the respondents 5 to 23.

9. When vacancies arose for elevation to the High Court as

Judges, as against the 1/3rd quota meant to be filled up from among

the State Judicial Officers, the Collegium of the High Court found

that the Petitioners had not completed 10 years of service in a

Judicial Office as required by Article 217(2)(a). Therefore, the

Collegium recommended the names of persons who fulfilled the

eligibility criteria. Aggrieved by this action on the part of the

Collegium of the High Court, the Petitioners have come up with this

Writ Petition.

10. The contentions raised by the petitioners in the writ petition

are little different from the submissions made by Mr. Rakesh

Dwivedi, learned Senior Counsel for the petitioners. Let us first deal

with the contentions raised in the writ petition.

11. In their pleadings, the Petitioners have pitched their claim on—

(i) a cumulative reading of sub­clauses (a) and (b) of clause (2)

of Article 217 and Explanation (a) and (aa) thereunder;

5

(ii) the decision of this Court in P. Ramakrishnam Raju vs.

Union of India1 wherein this Court directed the number of

years of practice as advocate, to be added to the number of

years of service rendered as a Judge of the High Court for

determining the qualifying service for pensionary benefits,

and

(iii) the reference made by a Division Bench of this Court to a 3­

member bench in Dheeraj Mor vs. Hon’ble High Court of

Delhi2 of the question whether for the purposes of Article

233, the number of years of practice as an advocate can be

clubbed together with the number of years of service as a

Judicial Officer for determining the eligibility for direct

recruitment to the post of District Judge.

12. At the outset, we shall point out that the ratio laid down in P.

Ramakrishnam Raju has no application to the issue on hand. The

said decision was rendered in the context of advocates elevated to

the benches of the High Courts, not being appropriately

compensated in terms of pensionary benefits, when they retire after

less than 7 years/10 years/14 years of service. We cannot apply the

1 (2014) 12 SCC 1
2 (2018) 4 SCC 619

6
same ratio while considering the eligibility of a person for

appointment as a Judge of the High Court.

13. The reliance placed by the Writ Petitioners in Ground P of the

Writ Petition on the reference made in Dheeraj Mor is of no use to

them anymore. This is for the simple reason that by a judgment

dated 19.02.2020, a 3­member bench of this Court has answered

the reference, in a way that will negate the argument of the

Petitioners.

14. In Dheeraj Mor, three categories of persons came up with a

claim for appointment to the post of District Judges by way of direct

recruitment. They were,(i)those who had 7 years of practice as an

advocate, but were serving in a judicial office on the date of

application/appointment, (ii)those who had completed 7 years of

service as Judicial Officers, but did not have 7 years of practice at

the Bar, and (iii) those who wanted the number of years of practice

as Advocate to be clubbed along with the number of years of service

as a Judicial Officer, for the purpose of arriving at the eligibility

criteria. After taking note of the diverse views expressed by different

benches of this Court in earlier cases, a Division Bench of this Court

passed an order on 23.01.2018 directing the matter to be placed

before a larger bench.

7

15. The Petitioners herein filed the present Writ Petition in

September 2019. On the date on which the Petitioners filed the Writ

Petition and on the date on which the Writ Petition came up for

hearing, namely 06.12.2019, the reference in Dheeraj Mor was still

pending. The question was therefore at large on the date when this

court ordered notice in the present writ petition.

16. But subsequently, the reference has been answered by a three­

member bench of this court on 19.02.2020. The principles laid down

by the three member bench, are as follows:

(i) For the purpose of Article 233(2), an advocate has to be

continuing in practice for not less than 7 years as on the

cut­off date and also at the time of appointment as District

Judge. Members of Judicial Service having 7 years’

experience of practice before they joined the service or those

having combined experience of 7 years as lawyer and

member of judiciary, are not eligible to apply for direct

recruitment as a District Judge, and

(ii) The decision in Vijay Kumar Mishra vs. High Court of

Judicature at Patna3 upholding the eligibility of a Judicial

Officer to apply for the post of District Judge by way of

3 (2016) 9 SCC 313

8
direct recruitment, does not lay down the law correctly and

hence, overruled.

17. Therefore, for the purpose of Article 233, it is not permissible

anymore, for people to hop­on and hop­off between the two

independent streams of recruitment, in the light of the law laid down

in Dheeraj Mor. Hence the reliance placed by the Petitioners in their

pleadings, on the reference pending at that time in Dheeraj Mor,

has become irrelevant.

18. Though Dheeraj Mor was concerned with Article 233 of the

Constitution, an analogy was drawn by S. Ravindra Bhat, J. in

Paragraph 34 of his separate but concurring opinion in Dheeraj

Mor, to Article 217 with which we are concerned in the present case.

Paragraph 34 of the said opinion reads as follows:

“34. This view is fortified by Article 217 (2), which
spells out two sources from which appointments can be
resorted to for the position of judge of a High Court: firstly,
member of a judicial service of a State [Article 217 (a)] and
an advocate with ten years’ experience [Article 217 (b)].

For the Supreme Court, Article 124 (3) (a) enables
consideration of a person with five years’ experience as a
High Court judge; Article 124(3)(b) enables consideration of
an advocate with ten years’ experience at the bar in any
High Court; Article 124(3)(c) enables consideration of a

9
distinguished jurist. Significantly, advocates with
stipulated experience at the bar are entitled, by express
provisions of the Constitution [Articles 233 (2), Article 217

(b) and Article 124 (3) (b)] to be considered for
appointment to the District Courts, High Courts and the
Supreme Court, respectively. However, members of the
judicial service can be considered only for appointment (by
promotion) as District Judges, and as High Court judges,
respectively. Members of the judicial service cannot be
considered for appointment to the Supreme Court.
Likewise, academics or distinguished jurists, with neither
practise at the Bar, nor any experience in the judicial
service, can be considered for appointment as District
Judge, or as High Court judge.”

19. Therefore, the very foundation upon which the Petitioners have

built their case, at least in their pleadings, is now gone. But Mr.

Rakesh Dwivedi, learned Senior Counsel for the petitioners contended

(i) that while clause (1) of Article 217 prescribes the method of

appointment and the age up to which an appointee can hold

office, clause (2) merely stipulates the qualification for

appointment and the method of computation of such

qualification;

(ii) that the qualifications prescribed in sub­clauses (a) and (b) of

clause (2) of Article 217 are in the alternative, but Article 217 does
10
not create separate streams for appointment, with independent

quotas for such streams;

(iii) that to interpret Explanation (a) in such a manner that only a

person who resigned from Judicial service and became an

Advocate will be eligible to club both the periods, will result in

unfair and hostile discrimination of Judicial Officers, offending

Article 14 and hence such an interpretation has to be avoided;

and

(iv) that there are precedents where District Judges who had not

completed 10 years of service, were appointed as Judges of High

courts, by clubbing the number of years of practice they had at

the bar, together with the number of years of service they put in

judicial service.

20. Before we deal with the above submissions, let us take a look at

Article 217(2) of the Constitution, which reads as follows:

“(2) A person shall not be qualified for appointment as
a Judge of a High Court unless he is a citizen of India and

(a) has for at least ten years held a judicial office in the
territory of India; or

(b) has for at least ten years been an advocate of a
High Court or of two or more such Courts in succession;

Explanation.—For the purposes of this clause—

11

(a) in computing the period during which a person has
held judicial office in the territory of India, there shall be
included any period, after he has held any judicial office,
during which the person has been an advocate of a High
Court or has held the office of a member of a tribunal or
any post, under the Union or a State, requiring special
knowledge of law;

(aa) in computing the period during which a person has
been an advocate of a High Court, there shall be included
any period during which the person [has held judicial
office or the office of a member of a tribunal or any post,
under the Union or a State, requiring special knowledge of
law] after he became an advocate;

(b) in computing the period during which a person has
held judicial office in the territory of India or been an
advocate of a High Court, there shall be included any
period before the commencement of this Constitution
during which he has held judicial office in any area which
was comprised before the fifteenth day of August, 1947,
within India as defined by the Government of India Act,
1935, or has been an advocate of any High Court in any
such area, as the case may be.”

21. It is clear from the language of Article 217 that clause (1) merely

prescribes the method of appointment and the age up to which an

appointee can hold office. Clause (2) does two things. First it stipulates

the qualification for appointment under the 2 sub­clauses (a) and (b).

Then it stipulates the method of reckoning such qualification, under

the 2 limbs of the Explanation.

12

22. Actually, clause (2) of Article 217 has 2 parts, the first of which

is in sub­clauses (a) and (b) and the second in Explanation (a) and

(aa). The first indicates in plain terms, that to be qualified for

appointment, a person (i) must be a citizen of India and (ii) must have

either held a judicial office for 10 years or been an Advocate of a high

court for 10 years.

23. Suppose there was no ‘Explanation’ under clause (2) of Article

217, then there would have been no scope for any argument, other

than to accept blindly, that the qualification stipulated in clause (2) of

Article 217, can be acquired by an individual from 2 separate sources,

namely (i) from the Bar or (ii) from the ‘judicial service’, as defined in

clause (b) of Article 236. This is for the reason that Sub­clauses (a)

and (b) are actually in the alternative, as can be seen from the use of

the word “or” in between. The word “or” in English grammar,

according to Merriam­webster dictionary, is a coordinating

conjunction. While the word “and”, which is also a conjunction, will

denote something to be taken cumulatively, the word “or” will denote

something to be taken alternatively. This is so far as the first part of

clause (2) is concerned. As stated earlier, the first part of clause (2) is

in sub­clauses (a) and (b).

13

24. The second part of clause (2) of Article 217, which has taken

shape in the form of an ‘Explanation’, merely explains the manner in

which the periods indicated in sub­clauses (a) and (b) are to be

construed. Interestingly, the Explanation under clause (2) of Article

217 also has 2 parts, one going with sub­clause (a) and another going

with sub­clause (b).

25. Explanation (a) goes with sub­clause (a) and Explanation (aa)

goes with sub­clause (b). This is because, Explanation (a) permits the

addition, to the number of years of service of a Judicial Officer, some

other period also, namely (i) the period during which a person has

been an advocate of a High Court, or (ii) the period during which a

person has held the office of a member of a Tribunal. Similarly,

Explanation (aa) permits the addition, to the number of years during

which a person has been an advocate of a High court, some other

period, namely the period during which he has held any judicial office

or the office of a member of a Tribunal.

26. According to Explanation (a), the period of service rendered by a

person in a judicial office has to be computed by taking into account

the period during which he has been an advocate of a high court.

14

27. But the condition for such addition of some other period,

under Explanation (a) is that such other period should have

followed and not preceded the judicial service. This is made clear

by the use of the words “after he has held any judicial office”.

28. What is sought by the petitioners herein is to club with their

judicial service, the experience that they had at the Bar before

joining judicial service. In other words, the petitioners want the

word “after” to be interpreted to mean and include “before”. We do not

know of any rule of interpretation which permits the word “after” to be

interpreted to mean and include “before”.

29. The telescoping of Explanation (a) and (aa) into sub­clauses (a)

and (b) of clause (2) of Article 217 would show that a person may

acquire the eligibility as indicated in Article 217(2)­

(i) either exclusively from the Bar [as provided in clause (b)]

(ii) or exclusively from the judicial service [as provided in clause

(a)]

(iii) or from a cocktail of both [as provided in Explanation (a) and
(aa)]

15

30. But what is important to note is that Article 217(2) merely

prescribes the eligibility criteria and the method of computation of the

same. If a person is found to have satisfied the eligibility criteria, then

he must take his place in one of the queues. There are 2 separate

queues, one from judicial service and another from the Bar. One

cannot stand in one queue by virtue of his status on the date of

consideration of his name for elevation and at the same time keep a

towel in the other queue, so that he can claim to be within the zone of

consideration from either of the two or from a combination of both.

31. The queue to which a person is assigned, depends upon his

status on the date of consideration. If a person is an advocate on the

date of consideration, he can take his place only in the queue meant

for members of the Bar. Similarly, if a person is a judicial officer on

the date of consideration, he shall take his chance only in the queue

meant for service candidates.

32. Hopping on and hopping off from one queue to the other, is not

permissible. Today, if any of the petitioners cease to be Judicial

Officers and become Advocates, they may be eligible to be considered

against the quota intended for the Bar. But while continuing as

Judicial Officers, they cannot seek to invoke Explanation (a) as it

16
applies only to those who have become advocates after having held

a judicial office.

33. The issue can be looked at from another angle also. The

petitioners successfully claimed and gained seniority over and above

the contesting respondents, on the ground that they were directly

recruited to the post of District Judges, before the contesting

respondents got promoted as District Judges. In other words, for the

purpose of seniority, the petitioners went solely by the date of

recruitment to the cadre of District Judges and not (i) by the total

length of service in a judicial office or (ii) by a combination of the

number of years of practice at the bar and the number of years of

judicial service. But for the purpose of determining the eligibility, they

want to go by the total period of practice as an Advocate and the

period of service in a judicial office. If clubbing is permitted, it should

be permitted even for the contesting respondents, which if done,

would upset even the seniority of the petitioners.

34. Though Mr. Rakesh Dwivedi, learned Senior Counsel submitted

that his clients cannot have any objection to the benefit of clubbing

being granted even to the contesting respondents, we think it is an

argument of convenience. For filling up the vacancies under the

service quota, the collegiums of the High courts consider the ACRs

17
and the judgments of the judicial officers, in the ratio of 1:3 or 1:5 or

so. To undertake this exercise, the High courts maintain seniority lists

of judicial officers. If there are 3 vacancies to be filled up, the profile of

9 or 15 senior­most officers are considered. If the argument of the

petitioners is accepted and the contesting respondents are also

granted the benefit of clubbing, they will be far seniors to the

petitioners in terms of the total number of years of service both at the

bar and in service. In such an event, the petitioners will not come

anywhere near the zone of consideration (within the first 9 or 15). In

every State, hundreds of judicial officers will satisfy the qualifying

criteria, if the argument of the petitioners is accepted. Take for

instance a case where a person is appointed as a District Judge after

10 years of practice at the Bar. If the contention of the petitioners is

accepted, even such a person will be eligible from day one of his

appointment as District Judge. Since all such persons cannot be

considered for the limited number of vacancies, a seniority list is

maintained and a particular number of officers are taken in the zone

of consideration, depending upon the number of vacancies sought to

be filled up under the quota. The cache in the argument of the

petitioners is that for the purpose of seniority, they do not want any

two services to be clubbed, but for the purpose of eligibility, they want

18
even the practice at the Bar to be clubbed. This is nothing but a self­

serving argument.

35. As pointed out earlier, the petitioners were appointed in

February 2011. They will be completing 10 years of service in a

judicial office by February 2021. This is why, when this court ordered

notice in this writ petition on 06.12.2019, they have agreed to delete

prayer A and confine themselves to prayer B, which is just for

returning the list of names recommended by the collegium of the

Madras High court. Perhaps the petitioners have gained an impression

that if the list of names already recommended is returned and the

matter is taken up afresh after February 2021, they would have by

then become eligible in terms of sub­clause (a) of clause (2) of Article

217 and at that time they can claim the benefit of seniority over and

above the contesting respondents.

36. Referring to the discussions that took place in the Drafting

Committee of the Constitution, on the amendments proposed to the

Draft of Article 193(2)(b) of the Constitution, which corresponds to the

present Article 217(2)(b), for the insertion of the words “and is” and

the rejection of the said suggestion by the Drafting Committee, it is

contended by the learned Senior Counsel for the petitioners that in

19
the light of the same, this Court cannot interpret Article 217(2)(b) in a

manner restricting it to “practising advocates”. The relevant portion of

the “Comments and Suggestions on the Draft Constitution”, from

Volume 4 of the “Framing of the Indian Constitution”, relied upon by

the learned counsel for the petitioners reads as follows:­

“The Editor of the Indian Law Review and some
other members of the Calcutta Bar have suggested that in
sub­clause (b) of clause (2) of article 193, after the word
“years” the words “and is” should be inserted.

Note : This amendment seeks to restrict the recruitment
of High Court judges under sub­clause (b) of clause (2) of
article 193 only to practising lawyers. If this amendment
is accepted then a person who has served as a district
judge for seven or eight years and has also practised as
an advocate of a High Court for seven or eight years before
being a district judge will not be eligible to be appointed as
a High Court judge whereas a member of the Provincial
Judicial Service who has served as a ‘munsif’ for only ten
years will be eligible to be so appointed, which is certainly
anomalous. This amendment cannot therefore be
accepted.”

37. On the basis of the above it is contended that Article 217(2)(b)

cannot be restricted to mean only those practising as advocates on

the date of consideration.

20

38. But the above argument loses sight of the fact that Article

217(2)(b) relates to the stream of advocates. When it comes to such a

stream, Explanation (aa) comes into play. Therefore, the reference to

the discussions in the Drafting Committee is of no relevance.

39. As a matter of fact, the present Explanation (a) was inserted

only by the Constitution (44th Amendment) Act, 1978 with effect from

20.06.1979. What was Explanation (a) till then, became Explanation

(aa) by the same Amendment. Therefore, the benefit of the present

Explanation (a) was not even available to judicial officers until

20.06.1979.

40. Reliance is placed by the learned counsel for the petitioners

upon the decision of this Court in Mahesh Chandra Gupta vs.

Union of India4, and the decision of the Delhi High court in D.K.

Sharma vs Union of India5 in support of his contention that the

entitlement to practise as an advocate was sufficient to satisfy the

criteria under Article 217(2) and that the provision does not

contemplate actual practice.

41. But both those decisions arose out of a challenge to the

appointment of members of the Income Tax Appellate Tribunal as

4 (2009) 8 SCC 273
5 2011 SCC Online Del 1773

21
Judges of the High courts. These decisions cannot apply to the case

of a person holding a judicial office. Mahesh Chandra Gupta (supra)

was a case where the appointment of a Member of the Income Tax

Appellate Tribunal as an Additional Judge of the Allahabad High

Court was under challenge. As seen from Para 38 of the Report, what

fell for consideration of this Court in the said case was “whether

actual practise as against the right to practise is a pre­requisite

constitutional requirement of the eligibility criteria under Article

217(2)(b)”. Sub­clause (b) of Clause (2) of Article 217 prescribes the

number of years a person should have been an Advocate to become

eligible for consideration. Therefore, if the petitioners want to be

considered from the category as advocates, irrespective of their

present status as judicial officers, they can always do so, provided

they do not stand in the queue intended for judicial officers. The case

of the petitioners, as on date falls under Article 217(2)(a) and not

Article 217(2)(b). Hence, Mahesh Chandra Gupta (supra) will not

come to their rescue. The judgment of the Delhi High court in D.K.

Sharma followed the ratio in Mahesh Chandra Gupta.

42. It is relevant to note that the expression “judicial office”

appearing in Article 217(2)(a) was interpreted in Shri Kumar Padma

22
Prasad vs. Union of India6
only to mean a judicial office belonging

to the judicial service defined in Article 236(b). Therefore, the case of

a Member of Income Tax Appellate Tribunal could not have fallen

within the ambit of Article 217(2)(a). This is why the decision in

Mahesh Chandra Gupta (supra) was rendered in the context of

Article 217(2)(b) and not Article 217(2)(a).

43. The words “has held” and the words “has been” appear

repeatedly in sub­clauses (a) and (b) as well as Explanation (a) and

(aa) under Article 217(2). In relation to a person from the category of

judicial service, sub­clause (a) uses the words “has held”. But in

relation to a person from the category of advocate, sub­clause (b) uses

the words “has been”. This is quite relevant for the reason that even

in Explanation (a) and (aa) the words “has held” always preceded the

words “judicial office” and the words “has been” always preceded the

word “advocate”.

44. In common parlance, the words “has held” stand in contra

distinction to the words “is holding” or “has been holding”.

45. On the other hand the words “has been” do not have any such

connotation. The Cambridge Dictionary states that the words “has

been” are in present perfect continuous form. The Dictionary says
6 (1992) 2 SCC 428)

23
that we may use the present perfect continuous, either to talk

about a finished activity in the recent past or to talk about a

single activity that began at a point in the past and is still

continuing. Keeping this in mind, Explanation (a) confers the benefit

of clubbing to a limited extent, to a person who has held a Judicial

Office. To be eligible for the limited benefit so conferred, a person

should have been an Advocate “after he has held any judicial

office”. There is no confusion either in the language of Article 217(2)

or in our mind.

46. The argument that it will be discriminatory to allow the benefit

of clubbing only to a person who held a judicial office and later

became an advocate, does not appeal to us. In fact, Article 217(2)

does not guarantee any one with the right to be appointed as a judge

of the High Court. In a way, a person holding a judicial office is better

placed, as he is assured of a career progression (though in a limited

sense) after being placed in something like a conveyor belt. There is

no such assurance for an advocate. Therefore, the argument based

upon Article 14 does not impress us.

47. It was also contended that a few persons whose names are

mentioned in Paragraph 16 of the Writ Petition, got appointed to the

24
High Court without completing 10 years of service as District Judges.

But we do not know whether they got so appointed by clubbing the

number of years of practise at the Bar. The factual situation that

prevailed in those cases is not available. In any case a majority of

those whose names are mentioned in Para 16 of the Writ Petition, got

appointed to the High Court before Constitution (44 th Amendment)

Act, 1978. Therefore, we do know what was done in those cases.

48. Therefore, in fine, we are of the considered view that the claim of

the writ petitioners is wholly untenable and the writ petition is

misconceived. Hence, the writ petition is dismissed. There will be no

order as to costs.

………………………..CJI.

(S.A. Bobde)

……………………………J.

(A.S. Bopanna)

……………………………J.

(V. Ramasubramanian)
New Delhi
September 04, 2020

25



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