Chinnappa Reddy, J. - (1.) The petitioners in the several writ petitions now before us as well as the appellants in Civil Appeal No. 528 of 1982 and the petitioners in Writ Petition Nos. 6346-6351 of 1980 which we dismissed on 11th October, 1984 were members of the Uttar Pradesh Judicial Services in 1980 when all of them, in response to an advertisement by the High Court of Allahabad, applied to be appointed by direct recruitment to the Uttar Pradesh Higher Judicial Service. They claimed that each of them had completed 7 years of practice at the bar even before their appointment to the Uttar Pradesh Judicial Service and were, therefore, eligible to be appointed by direct recruitment to the Higher Judicial Service. As there was a question about the eligibility of members of the Uttar Pradesh Judicial Service to appointment by direct recruitment to the Higher Judicial Service, some of them filed writ petitions in the Allahabad High Court. The said petitions were dismissed and it was held that members of the Uttar Pradesh Judicial Service were not eligible to be appointed by direct recruitment to the Uttar Pradesh High Judicial Service. Civil Appeal No. 548 of 1982 was filed in this Court after obtaining special leave under Art. 136 of the Constitution. By virtue of the interim order passed by this Court, members of the Uttar Pradesh Judicial Service, who desired to appear at the examination and selection were allowed to so appear, but the result of the selection was made subject to the outcome of the civil appeal and the writ petitions in this Court. The civil appeal and some of the writ petitions were dismissed by us on October 11, 1984. The remaining writ petitions are now before us. Shri Lal Narain Sinha and Shri K. K. Venugopal, learned Counsel who appeared for the petitioners, tried to persuade us to reopen the issue, which had been concluded by our decision on October 11,1984. Having heard them, we are not satisfied that there is any reason for re-opening the issue. When we dismissed the civil appeal and the writ petitions on the former occasion, we were content to merely affirm the judgment of the High Court of Allahabad without giving our own reasons. In view of the arguments advanced, we consider that it may be better for us to indicate briefly our reasons.
(2.) The submission of Shri Lal Narain Sinha and Shri K. K. Venugopal was 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 submission of the learned counsel was that members of the Subordinate Judiciary, who had put in 7 years' practice at the bar before joining the Subordinate Judicial Service and who had gained experience as Judicial Officers by joining the Subordinate Judicial Service ought to be considered better fitted for appointment as District Judges because of the additional experience gained by them rather than be penalised for that reason. The learned counsel submitted that a construction of Art. 233 of the Constitution which would render a member of the Subordinate Judicial Service ineligible for appointment to the Higher Judicial Service because of the additional experience gained by him as a Judicial Officer would be both unjust and paradoxical. It was also suggested that it would be extremely anomalous if a member of the Uttar Pradesh Judicial Service who, on the present construction of Art. 222 is ineligible for appointment as a District Judge by direct recruitment, is nevertheless eligible to be appointed Judge of the High Court by reason of Art. 217(2)(aa). On the other hand Sri Gopala Subramaniam, learned counsel for the respondents, urged 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. 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 taking a leap, as it were, over senior members of the Judicial Service with long records of meritorious service. Both sides relied upon the decisions of this Court in Rameshwar Dayal v. State of Punjab (1961) 2 SCR 847 and Chandra Mohan v. State of Uttar Pradesh, (1967) 1 SCR 77.
(3.) Article 233 is as follows:- "233(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 as an advocate or a pleader and is recommended by the High Court for appointment." Two points straightway project themselves when the two clauses of Art. 233 are read: The first clause deals with 'appointments of persons to be, and the posting and promotion of, District Judges in any State' while the second clause is confined in its application to persons 'not already in the service of the Union or of the State'. We may mention here that 'Service of the Union or of the State' has been interpreted by this Court to mean judicial service. Again while the first clause makes consultation by the Governor of the State with the High Court necessary, the second clause requires that the High Court must recommende a person for appointment as a District Judge. It is only in respect of the persons covered by the second clause that there is a requirement that a person shall be eligible for appointment as District Judge if he has been an Advocate or a pleader for not less than 7 years. In other words, in the case of candidates who are not members of a Judicial Service they must have been advocates or pleaders for not less than 7 years and they have to be recommended by the High Court before they may be appointed as District Judges, while in the case of candidates who are members of a Judicial Service the 7 years rule has no application but there has to be consultation with the High Court. 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 v. State of Punjab (supra) where he observes : "......................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 cl. (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 cl. (2) and all that is required is that he should be an advocate or pleader of seven years' standing." 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 Cl. (2) had to be fulfilled. We may also add here earlier the Court also expressed the view ,............"we do not think that Cl. (2) of Art. 233 can be interpreted in the light of the Explanation added to Articles 124 and 217.";