R. Poornima and Ors. v. Union of India and Ors.
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 Certiorarif ied
Mandamus or any other appropriate Writ, Order or Orde rs,
Directions, to call for records relating to the last li st of names
recommended by the Hon’ble Chief Justice of High Court of
Madras to the Hon’ble Chief Justice of India for 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 he rein
and consequently direct the Hon’ble Collegiums of the Madras
High Court to consider the names of the Petitioners also f or
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, Direct ions,
directing the Respondents No. 1 to 4 to return the last list of
names for appointment as Judges of High Court, Madr as
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 self-explanatory 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.
95
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.
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 n ot
completed 10 years of service as Judicial Officers, as on da te. 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 senior-most, as seen from the annual list of officers
released by the High Court. The seniority of direct recrui ts like the
Petitioners herein over the promotees, was also reinforced by the judgment
of the Division Bench of the Madras High Court in Writ Petit ion No.
20069 of 2014, by judgment dated 26.02.2015.
6. The short 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. 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, sub-clauses (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 render ed by
them as Judicial Officers, for determining their eligi bility. 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.
R. POORNIMA AND ORS. v. UNION OF INDIA AND ORS.
[S. A. BOBDE, CJI]
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 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 1/3 rd quota meant to be filled up from among the State
Judicial Officers, the Collegium of the High Court f ound 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 dea l with the
contentions raised in the writ petition.
11.In their pleadings, the Petitioners have pitched their claim on—
(i) a cumulative reading of sub-clauses (a) and (b) of clause (2)
of Article 217 and Explanation (a) and (aa) thereunder;
(ii) the decision of this Court in P . Ramakrishnam Raju vs.
Union of India 1 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
Delhi 2 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 di rect
recruitment to the post of District Judge.
1 (2014) 12 SCC 1
2 (2018) 4 SCC 619
97
12. At the outset, we shall point out that the ratio laid dow n 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 compensat ed in
terms of pensionary benefits, when they retire after less than 7 years/10
years/14 years of service. We cannot apply the 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 judgm ent dated
19.02.2020, a 3-member 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 practi ce 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 tak ing note of the
diverse views expressed by different benches of this Cour t 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.
15. The Petitioners herein filed the present Writ Peti tion in
September 2019. On the date on which the Petitioners filed t he 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
cut-off date and also at the time of appointment as District
R. POORNIMA AND ORS. v. UNION OF INDIA AND ORS.
[S. A. BOBDE, CJI]
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 Patna 3 upholding the eligibility of a Judicial
Officer to apply for the post of District Judge by way of
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 hop-on and hop-off 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 pleadi ngs, 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, membe r of a
judicial service of a State [Article 217 (a)] and an advocat e
with ten years’ experience [Article 217 (b)]. For the Su preme
Court, Article 124 (3) (a) enables consideration of a p erson
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; Art icle
124(3)(c) enables consideration of a 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)] t o be
considered for appointment to the District Courts, High C ourts
and the Supreme Court, respectively. However, membe rs of
the judicial service can be considered only for app ointment
3 (2016) 9 SCC 313
99
(by promotion) as District Judges, and as High Court judge s,
respectively. Members of the judicial service canno t be
considered for appointment to the Supreme Court. Li kewise,
academics or distinguished jurists, with neither pr actise 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, i s 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 sub-clauses (a) and (b) of
clause (2) of Article 217 are in the alternative, but Article 217 does not
create separate streams for appointment, with independe nt 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 Advoc ate
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 offi ce 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;
R. POORNIMA AND ORS. v. UNION OF INDIA AND ORS.
[S. A. BOBDE, CJI]
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, the re shall be
included any period, after he has held any judicial office,
during which the person has been an advocate of a H igh
Court or has held the office of a member of a tribunal or an y
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, und er 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 b een an
advocate of a High Court, there shall be included any p eriod
before the commencement of this Constitution during w hich
he has held judicial office in any area which was compri sed
before the fifteenth day of August, 1947, within In dia as
defined by the Government of India Act, 1935, or ha s 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 claus e (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 sub-clauses (a) and (b).
Then it stipulates the method of reckoning such qualification, under the 2
limbs of the Explanation.
22. Actually, clause (2) of Article 217 has 2 parts, the firs t 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 ei ther held a
judicial office for 10 years or been an Advocate of a high c ourt 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
101
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 Sub-clauses (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 Merriam-
webster 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 claus e (2) is concerned.
As stated earlier, the first part of clause (2) is in sub-clauses (a) and (b).
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 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).
25. 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 Office r, 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, Ex planation (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.
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”
R. POORNIMA AND ORS. v. UNION OF INDIA AND ORS.
[S. A. BOBDE, CJI]
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 sub-clauses
(a) and (b) of clause (2) of Article 217 would show that a per son 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)]
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 sepa rate 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 b e 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 .
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 resp ondents got
103
promoted as District Judges. In other words, for the purpose of seniority,
the petitioners went solely by the date of recruitment to t he 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 quot a, the
collegiums of the High courts consider the ACRs and the judgments of
the judicial officers, in the ratio of 1:3 or 1:5 or so. To under take 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 senior-mos t
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 petitione rs 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 consi deration,
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 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 appoi nted 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
R. POORNIMA AND ORS. v. UNION OF INDIA AND ORS.
[S. A. BOBDE, CJI]
this writ petition on 06.12.2019, they have agreed to delete prayer A and
confine themselves to prayer B, which is just for returnin g 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 sub-clau se
(a) of clause (2) of Article 217 and at that time they c an claim the
benefit of seniority over and above the contesting respondents.
36. Referring to the discussions that took place in the Dr afting
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 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 “Comment s 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 sub-
clause (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 sub-clause (b) of clause (2) of
article 193 only to practising lawyers. If this amendm ent 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 dist rict
judge will not be eligible to be appointed as a High Court
judge whereas a member of the Provincial Judicial Se rvice
who has served as a ‘munsif’ for only ten years will be el igible
to be so appointed, which is certainly anomalous. T his
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 advocat es on the
date of consideration.
105
38. But the above argument loses sight of the fact that Arti cle
217(2)(b) relates to the stream of advocates. When it com es 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 (44 th 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 th e 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 India 4, and the decision of the Delhi High court in D.K. Sharma vs
Union of India 5 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 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 o f this
Court in the said case was “whether actual practise as against the right
to practise is a pre-requisite constitutional requirement of the eligibility
criteria under Article 217(2)(b)”. Sub-clause (b) of Clause (2) of Article
217 prescribes the number of years a person should ha ve been an
Advocate to become eligible for consideration. Therefore, if the petitioners
want to be considered from the category as advocates, irrespe ctive 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.
4 (2009) 8 SCC 273
5 2011 SCC Online Del 1773
R. POORNIMA AND ORS. v. UNION OF INDIA AND ORS.
[S. A. BOBDE, CJI]
42. It is relevant to note that the expression “judicial office”
appearing in Article 217(2)(a) was interpreted in Shri Kumar Padma
Prasad vs. Union of India 6 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 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 re lation to a
person from the category of advocate, sub-clause (b) uses t he 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 “judi cial
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 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 fo r 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) do es 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
6 (1992) 2 SCC 428)
107
an advocate. Therefore, the argument based upon Article 14 does not
impress us.
47. It was also contended that a few persons whose names ar e
mentioned in Paragraph 16 of the Writ Petition, got appoint ed to the
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 o f 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 t he
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.
Ankit Gyan Writ petition dismissed.
R. POORNIMA AND ORS. v. UNION OF INDIA AND ORS.
[S. A. BOBDE, CJI]