District judges appointment: Nearly 5k posts in district judiciary vacant in country, SC told

New Delhi, Sep 24 (PTI) Nearly 5,000 posts in district judiciary, having 25,870 sanctioned posts across the country, are still vacant, the Supreme Court was informed on Wednesday.

A five-judge Constitution bench headed by Chief Justice B R Gavai was urged to factor in the experience of judicial officers spent at the bar and the bench to enable them to write exams for the post of district judges under the bar quota.

The bench, also comprising Justices M M Sundresh, Aravind Kumar, S C Sharma and K Vinod Chandran, continued its hearings for the second consecutive day on the constitutional question whether judicial officers, who have completed seven years of practice as advocates prior to joining the bench, could be appointed as district judges against vacancies earmarked for members of the bar.

Senior advocate Maneka Guruswamy, appearing for a few litigants, referred to the data of Ministry of Law and Justice and referred to the 25,870 sanctioned posts for the subordinate judiciary in India.

“There are 4789 vacancies,” she said, adding the experience at bar and judicial services be treated as equivalent.

“It is the same stream, two rivers flowing into the ocean, I am asking that, that constitutional ocean be extended to Article 233. Because that is the concept of an integrated judiciary. To do otherwise would not only impact the constitution framers’ vision of an integrated judiciary but also the nature of the Indian state…,” she said.

The bench is examining questions over the interpretation of Article 233 of the Constitution that governs appointment of district judges.

“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,” Article 233 reads.

It adds, “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.” On Wednesday, the bench asked whether Article 233 was merely declaratory, whether it served as a source of appointment, and how its two sub provisions worked in practice.

One counsel argued that Article 233 ensures independence of the judiciary and is not itself a source of appointment.

“Then what is the source of appointment of a district judge?” the CJI asked.

Justice Sundresh suggested under the framework, appointments and promotions come under Article 233(1), while Article 233(2) sets qualifications specifically for advocates.

He noted earlier arguments had sought to bring in-service candidates under Article 233(2), but the current line of submissions treated 233(1) as a comprehensive provision, leaving no room for overlap.

Justice Sharma, meanwhile, observed that the reasoning in previous judgments indicated a concern that in-service judicial officers should not gain undue advantage or “steal a march” over advocates.

Senior advocate Gopal Sankaranarayanan referred to constitutional schemes, which treat judicial experience and bar experience equivalently for appointments to higher constitutional courts.

He argued that the absence of a similar explanation under Article 233 should be seen as favouring inclusion of prior Bar practice in reckoning eligibility.

“The earlier period as an advocate must be added to the judicial period since there is no exclusion clause,” he contended.

The bench is likely to reserve judgement over 30 pleas on Thursday.

On September 23, the bench rued the "stagnation" in district judiciary and underlined several “brilliant candidates” leaving service only after a few years as they don't become district judges even at the time of superannuation.

Among the four questions Bhushan raised, one was “whether a judicial officer, who has already completed seven years at the bar before joining judicial service, was entitled to appointment as an additional district judge against bar quota vacancies”? “Whether eligibility for district judge appointments must be assessed at the stage of application, appointment, or both?” he asked as the second question.

The third issue, he said, was whether Article 233(2) prescribes separate eligibility for persons already serving in the judicial services of the Union or State.

“Whether a combined period of seven years as an advocate and judicial officer would qualify a candidate for district judge appointment,” he said about the fourth issue. PTI SJK SJK AMK AMK