Poornima and Ors. v. Union of India
WRIT PETITION (CIVIL) NO. 1172 OF 2019
Decided on September 4, 2020.
BENCH– SA Bobde, AS Bopanna, V. Ramasubramanian, JJ.
A writ was filed by eight judicial officers pleading 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 Judge. It was contented by the petitioner that majority of them have completed their 10 years of practice as Advocate before being recruited as District Judge. They further argued that not considering their name for appointment was incorrect in light of interpretation of Article 217 itself, which results in arbitrariness and violation of Article 14 of the Constitution. Hence, petitioners want that the experience gained by them as Advocates before being appointed as Judicial Officer to be clubbed together with the service rendered by them as Judicial Officers, for determining their eligibility for elevation of Judge of High Court.
Can Judicial officers invoke Article 217 of Constitution to club experience they had at bar before joining the Judicial Services, to claim eligibility for considering them for elevation of High Court judge?
The Court answered the question in negative and said that as per Article 217 a person may acquire the eligibility to be elevated as a Judge of High Court either exclusively from the Bar or exclusively from the Judicial Service or from a cocktail of both. It further clarified that Article 217 merely prescribes the eligibility criteria and method of computation of same if person is found to have satisfied the eligibility criterion he must take his place in one of three queues defined above. The Hon’ble Supreme Court further interpreted the word “has held” and “has been” as it is used in Article 217 and observed that word “has held” always preceded the words “judicial office” and the words “has been” always preceded the word “advocate”, which clearly asserts the fact that for purpose of clubbing a person has be an advocate after he has held any judicial office.
The Court citing The Cambridge Dictionary states that the words “has been” are in present perfect continuous form and states 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, the Court said that 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”.
[See 217. Appointment and conditions of the office of a Judge of a High Court
(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the chief Justice, the chief Justice of the High court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty two years Provided that
(a) a Judge may, by writing under his hand addressed to the President, resign his office;
(b) a Judge may be removed from his office by the President in the manner provided in clause ( 4 ) of Article 124 for the removal of a Judge of the Supreme Court;
(c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India
(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
(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 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
(3) If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final]