Case Number: Writ petition (Civil) no. 1172 of 2019

 Judges Names: Hon’ble Judges S A bobde J, A S Bopanna J and v.Ramasubramanian,J.

 Order dated: 04.09.2020

Facts of the Case

• 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 not completed 10 years of service as Judicial Officers, as on date. 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.
• 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 recruits like the Petitioners herein over the promotees, was also reinforced by the judgment of the Division Bench of the Madras High Court in Writ Petition No. 20069 of 2014, by judgment dated 26.02.2015.
• 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.
• In simple terms, the Petitioners want the experience gained by them as advocates to be clubbed together with the service rendered by them as Judicial Officers, for determining their eligibility. 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.
• 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.
• When vacancies arose for elevation to the High Court as Judges, as against the 1/3rd quota meant to be filled up from among the State Judicial Officers, the Collegium of the High Court found 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.
• The main issue arises that whether the Judicial officers invoke Article 217 of Constitution to club experience they had at bar before joining the Judicial Officers, to claim eligibility for considering them for elevation of High Court judge.

Supreme Court held:

• The Supreme court held that as per the Article 217 a person may acquire the eligibility to be elevated as a Judge of High Court exclusively from the Bar or exclusively from the Judicial Service or 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 criteriaand 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 been 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 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”.