ARUN MISHRA,J. - (1.) A Division Bench of this Court has referred the matters. The question involved in the matters is the interpretation of Article 233 of the Constitution of India as to the eligibility of members of the subordinate judicial service for appointment as District Judge as against the quota reserved for the Bar by way of direct recruitment. The petitioners who are in judicial service, have claimed that in case before joining judicial service a candidate has completed 7 years of practice as an advocate, he/she shall be eligible to stake claim as against the direct recruitment quota from the Bar notwithstanding that on the date of application/appointment, he or she is in judicial service of the Union or State. Yet another category is that of the persons having completed only 7 years of service as judicial service. They contend that experience as a judge be treated at par with the Bar service, and they should be permitted to stake their claim. The third category is hybrid, consisting of candidates who have completed 7 years' by combining the experience serving as a judicial officer and as advocate. They claim to be eligible to stake their claim against the above quota.
(2.) The central argument advanced is that Article 233(2) provides two sources of recruitment; one is from judicial service, and the other is from Bar. Thus, a person in judicial service with experience of 7 years practice at the Bar, before joining service (or combined with service as a judicial officer), can stake a claim under Article 233(2) as against the posts reserved for those having experience of 7 years as an advocate/pleader. Reliance has been placed on the decisions of this Court in Rameshwar Dayal v. State of Punjab & Ors., AIR 1961 SC 816 and in Chandra Mohan v. State of Uttar Pradesh & Ors., (1967) 1 SCR 77 = AIR 1966 SC 1987 to submit that under Article 233(2) there are two sources of direct recruitment to the higher judicial service; one from the Bar and the other from service. The decisions of Constitution Bench in Chandra Mohan (supra) and Rameshwar Dayal (supra) are binding. The decision to the contrary in Satya Narain Singh v. High Court of Judicature at Allahabad & Ors., (1985) 1 SCC 225 taking a departure negating the right of the member of the judicial service and confining the direct recruitment from the Bar through practicing advocates effectively whittle down the law laid down in Chandra Mohan (supra) and Rameshwar Dayal (supra).
(3.) It is argued that articles 233(1) and 233(2) inter alia deal with direct recruitment, as is apparent from the Constitution Bench decision of this Court in the High Court of Punjab & Haryana v. State of Haryana, (1975) 1 SCC 843. The rules framed by various High Courts disqualifying the members of subordinate judicial service from direct recruitment to the higher judicial service are not in consonance with the law laid down in Chandra Mohan (supra) and Rameshwar Dayal (supra) and the provisions contained in Article 233. The rules, which completely cut off one stream and provide only one stream of direct recruitment then the High Court's rules would have to be declared ultra vires being violative of Article 233. It was further submitted that the rules framed by various High Courts arbitrarily discriminate between advocates and the members of the judicial service in the matter of direct recruitment, the rules suffer from the vice of arbitrariness. It was also submitted that the decision in All India Judges' Association v. Union of India, (2002) 4 SCC 247 has been rendered by a Bench of three Judges. The decision cannot overturn the two earlier Constitution Bench judgments of this Court. In All India Judges' Association case (supra), the Court proceeded on the basis that there was only one source of direct recruitment to the higher judicial service, which is violative of the dictum laid down by a larger Bench of this Court in Rameshwar Dayal (supra) and Chandra Mohan (supra). The decision in All India Judges' Association case (supra) is inadvertent and cannot be said to be binding. The quota system from the service and the Bar would apply to those who apply within the quota. The quota system cannot override the constitutional scheme of Article 233(1) and (2).;