R. Poornima and Ors. vs Union of India and Ors.

24 to 29 were duly selected and appointed as District Judges by way of direct recruitment in the year 2011 – The respondent nos. 5 to 23 were appointed as Judicial Officers in the cadre below that of District Judges – After long service, they gained promotion to the post of District Judges – But their promotion happened after the date on which the petitioners were directly recruited as District Judges – This is how and why the petitioners became seniors to the respondent nos. 5 to 23 – The grievance of the petitioners is that despite being the senior-most in the cadre of District Judges, they have been overlooked and their juniors now recommended for elevation to the High Court as Judges – The Collegium of the High Court found that the petitioners had not completed 10 years of service in a Judicial Office as required by Art. 217(2)(a) – Therefore, recommended the names of persons who fulfilled the eligibility criteria – Writ petition – Petitioners contended that the qualifications prescribed in sub-clauses (a) and (b) of clause (2) of Art. 217 are in the alternative, but Art. 217 does not create separate streams for appointment, with independent quotas for such streams and 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 Art. 14 and such interpretation has to be avoided – Held: The clause (2) of Art. 217 has two parts, the first of which is in sub-clauses (a) and (b) and the second in Explanation (a) and (aa) – Explanation (a) goes with sub-clause (a) and Explanation (aa) goes with sub-clause(b) – 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 – 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’ – However, 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 – The petitioners want the word ‘after’ to be interpreted to mean and include ‘before’ – This is not permissible – Further, the Art. 217(2) merely prescribes the eligibility criteria and method of computation – There are two separate queues, one from judicial service and another from the Bar – The queue to which a person is assigned, depends upon his status (either as an advocate or judicial officer) on the date of consideration – Hopping on and hopping off from one queue to other, is not permissible – As far as contention regarding Art.14 is concerned, there is no violation of Art. 14, as Art. 217(2) does not guarantee anyone with the right to be appointed as a Judge of the High Court – Therefore, the claim of the writ petitioners is wholly untenable – Consequently, the writ petition is dismissed.

Dismissing the writ petition, the Court

HELD: 1. Clause (2) of Article 217 has two parts, the first of which is in sub-clauses (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. [Para 22][100-G]

2. 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 sub-clauses (a) and (b) are to be construed. Interestingly, the Explanation under clause

(2) of Article 217 also has 2 parts, one going with sub-clause (a) and another going with sub-clause (b). [Para 24][101-C-D]

3. Explanation (a) goes with sub-clause (a) and Explanation

(aa) goes with sub-clause (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. [Para 25][101-D-F]

4. 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. [Para 26][101-F]

5. 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”. [Para 27][101-G]

6. 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”. This Court does not know of any rule of interpretation which permits the word “after” to be interpreted to mean and include “before”. [Para 28][101-H; 102-A]

7. 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)] [Para 29][102-B-C]

8. 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 two 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. [Para 30][102-C-E]

9. 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. [Para 31][102-EF]

10. 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 applies only to those who have become advocates after having held a judicial office. [Para 32][102-F-G]

11.1 The words “has held” and the words “has been” appear repeatedly in sub-clauses (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, sub-clause (a) uses the words “has held”. But in relation to a person from the category of advocate, sub-clause (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”. [Para 43][106-B-D]

11.2 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 mind of this Court. [Para 45][106-E-F]

P. Ramakrishnam Raju v. Union of India (2014) 12 SCC

1 : [2014] 4 SCR 562; Mahesh Chandra Gupta v. Union of India (2009) 8 SCC 273 : [2009] 10 SCR 921; D. K. Sharma v. Union of India (2011) SCC Online Del 1773 – inapplicable.

Dheeraj Mor v. Hon’ble High Court of Delhi (2018) 4 SCC 619 : [2018] 1 SCR 828; Vijay Kumar Mishra v. High Court of Judicature at Patna (2016) 9 SCC 313 : [2016] 3 SCR 806; Shri Kumar Padma Prasad v. Union of India (1992) 2 SCC 428 : [1992] 2 SCR 109 –

referred to.