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2009 DIGILAW 1133 (PAT)

Shiv Kant v. State Of Bihar

2009-08-21

P.K.MISRA, SHIVA KIRTI SINGH

body2009
JUDGEMENT 1. Heard Mr. Basant Kumar Choudhary, Senior Advocate for the petitioner, Mr. Rana Ishwar Chandra for the State and Mr. Amish Kumar for respondent no. 2. 2. The present writ petitioner is admittedly employed as Civil Judge Class-I (Senior Division) in Madhya Pradesh. He, pursuant to an advertisement for appointment by direct recruitment to the post of District Judge in the State of Bihar from Bar, made an application. He was initially allowed to appear in the examination and became successful. However, subsequently it was found that he was not eligible as he was in judicial service in Madhya Pradesh and his result has been cancelled. The said order is being impugned in the present writ petition. 3. Learned counsel for the petitioner has contended with much vehemence but less conviction that keeping in view Article 233(2) of Constitution of India the petitioner was eligible inasmuch as it cannot be said that he was in services of the Union of India or in services of State Government of Bihar as he was in service in Madhya Pradesh. 4. Chapter-VI of the Constitution of India deals with "subordinate courts". Article 233 is extracted hereunder: "233. Appointment of District Judges- (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 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 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." 5. The learned counsel for the petitioner has submitted that the reference to the expression "service of the State" means, judicial service of the State and is not referable to a person who is in the judicial service of any other State. It is, therefore, submitted by him that since the petitioner completed seven years of service as advocate before he entered into judicial service in Madhya Pradesh, his candidature should not have been rejected. 6. In our considered opinion, the above interpretation, although ingenuously put forth by the learned counsel, cannot be accepted. It is, therefore, submitted by him that since the petitioner completed seven years of service as advocate before he entered into judicial service in Madhya Pradesh, his candidature should not have been rejected. 6. In our considered opinion, the above interpretation, although ingenuously put forth by the learned counsel, cannot be accepted. In the context in which such expression has been used, it is evident that any person who is in service either under the Union of India or under any State would not be eligible to be considered for being appointed as District Judge, as contemplated in Article 233(2) of the Constitution. The scheme highlighted in Chapter-VI appears to be welI settled. It contemplates appointment as District Judge either by promotion from the Subordinate Judicial Service of the concerned State or directly from the Bar. In case there is a direct recruitment from the Bar, a person shall not be eligible unless he has been an advocate for at least seven years. 7. The above view finds support from the decision of the Supreme Court reported in Satya Narain Singh and Others Vs. The High Court of Judicature at Allahabad and Others ( AIR 1985 SC 308 ). Though, in the said case, the question was relating to eligibility of a person already in judicial service of the very same State for being considered for appointment as per Article 233(2), the observations made by the Supreme Court in the course of discussion in the said decision can be said to be applicable to the facts of the present case. In the said case, it was contended that "...there was no constitutional inhibition against members of any Subordinate Judicial Service seeking to be appointed as District Judges by direct recruitment provided they had completed 7 years practice at the bar." The counsel for the respondent, on the other hand, had contended that "...there was a clear demarcation in the Constitution between the two sources of recruitment namely: 1. those who were 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 candidates from that source the further qualification of 7 years as an advocate or a pleader was made obligatory for eligibility. According to Mr. 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 candidates from that source the further qualification of 7 years as an advocate or a pleader was made obligatory for eligibility. According to Mr. Gopala Subramaniam, a plain reading of both the 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 Subordinate Judicial Service with long records of meritorious service...." 8. While repelling the contentions of the petitioners in the said case, the Supreme Court observed thus: "..,A clear distinction is made between the two sources of recruitment and the dichotomy is maintained. The two streams are separate until they come together by appointment. Obviously the same ship cannot sail both the streams simultaneously. The dichotomy is clearly brought out by S.K. Das, J. in Rameshwar Dayal Vs. State of Punjab ( AIR 1961 SC 816 ) (supra) where he observes (at P. 822): ...Article 233 is a self-contained provision regarding 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 CI. (1) the Governor can appoint such a person as a District Judge in consultation with the relevant High Court. As to a person not already in service, a qualification is laid down in CI. (2) and all that is required is that he should be an advocate or pleader of seven years standing." 9. 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 from the Bar and their appointment has to be tested by the requirements of Clause (2), we must hold that they fulfilled those requirements. Clearly the Court was expressing the view that it was in the case of recruitment from the Bar, as distinguished from Judicial Service that the requirements of CI. (2) had to be fulfilled. Clearly the Court was expressing the view that it was in the case of recruitment from the Bar, as distinguished from Judicial Service that the requirements of CI. (2) had to be fulfilled. We may also add here earlier the Court also expressed the view, ...we do not think that CI. (2) of Art. 233 can be interpreted in the light of the Explanation added to Articles 124 and 217." 10. In view of the above observation made by the Supreme Court, we do not think there is any merit in the submissions made by the counsel for the petitioner. The petition is accordingly dismissed. No costs.