R. POORNIMA AND ORS.versusUNION OF INDIA AND ORS.

                          [2020] 8 S.C.R. 89                               89


                     R. POORNIMA AND ORS.                                  A
                                   v.
                   UNION OF INDIA AND ORS.
               (Writ Petition (Civil) No. 1172 of 2019)
                       SEPTEMBER 04, 2020                                  B

           [S. A. BOBDE, CJI, A. S. BOPANNA AND
                V. RAMASUBRAMANIAN, JJ.]
       Constitution of India – Art. 217(2) – Explanation (a) and
(aa) u/Art. 217(2) – The petitioners as well as the respondent nos.        C
24 to 29 were duly selected and appointed as District Judges by
way of direct recruitment in the year 2011 – The respondent nos. 5
to 23 were appointed as Judicial Officers in the cadre below that of
District Judges – After long service, they gained promotion to the
post of District Judges – But their promotion happened after the
date on which the petitioners were directly recruited as District          D
Judges – This is how and why the petitioners became seniors to the
respondent nos. 5 to 23 – The 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 – The Collegium of the High          E
Court found that the petitioners had not completed 10 years of
service in a Judicial Office as required by Art. 217(2)(a) – Therefore,
recommended the names of persons who fulfilled the eligibility
criteria – Writ petition – Petitioners contended that the qualifications
prescribed in sub-clauses (a) and (b) of clause (2) of Art. 217 are
in the alternative, but Art. 217 does not create separate streams for      F
appointment, with independent quotas for such streams and to
interpret Explanation (a) in such a manner that only a person who
resigned from Judicial service and became an Advocate will be
eligible to club both the periods, will result in unfair and hostile
discrimination of Judicial officers, offending Art. 14 and such
                                                                           G
interpretation has to be avoided – Held: The clause (2) of Art. 217
has two parts, the first of which is in sub-clauses (a) and (b) and
the second in Explanation (a) and (aa) – Explanation (a) goes with
sub-clause (a) and Explanation (aa) goes with sub-clause(b) –
According to Explanation (a), the period of service rendered by a
person in a judicial office has to be computed by taking into account      H
                                   89
90            SUPREME COURT REPORTS                         [2020] 8 S.C.R.


A    the period during which he has been an advocate of a High Court
     – 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’ – However, what is
     sought by the petitioners herein is to club with their judicial service,
B
     the experience that they had at the Bar before joining Judicial service
     – The petitioners want the word ‘after’ to be interpreted to mean
     and include ‘before’ – This is not permissible – Further, the Art.
     217(2) merely prescribes the eligibility criteria and method of
     computation – There are two separate queues, one from judicial
C    service and another from the Bar – The queue to which a person is
     assigned, depends upon his status (either as an advocate or judicial
     officer) on the date of consideration – Hopping on and hopping
     off from one queue to other, is not permissible – As far as contention
     regarding Art.14 is concerned, there is no violation of Art. 14, as
     Art. 217(2) does not guarantee anyone with the right to be appointed
D
     as a Judge of the High Court – Therefore, the claim of the writ
     petitioners is wholly untenable – Consequently, the writ petition is
     dismissed.
           Dismissing the writ petition, the Court
E          HELD: 1. Clause (2) of Article 217 has two parts, the first
     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 either held a judicial office for 10 years or been an
     Advocate of a High Court for 10 years. [Para 22][100-G]
F
            2. 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)
G    and another going with sub-clause (b). [Para 24][101-C-D]
           3. Explanation (a) goes with sub-clause (a) and Explanation
     (aa) goes with sub-clause (b). This is because, Explanation (a)


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   R. POORNIMA AND ORS. v. UNION OF INDIA AND ORS.                       91


permits the addition, to the number of years of service of a Judicial    A
Officer, 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, Explanation (aa) permits the addition, to the number of
years during which a person has been an advocate of a High court,
                                                                         B
some other period, namely the period during which he has held
any judicial office or the office of a member of a Tribunal.
[Para 25][101-D-F]
     4. 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               C
advocate of a high court. [Para 26][101-F]
      5. 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”.         D
[Para 27][101-G]
      6. 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” to be interpreted to mean and include              E
“before”. This Court does not know of any rule of interpretation
which permits the word “after” to be interpreted to mean and
include “before”. [Para 28][101-H; 102-A]
        7. The telescoping of Explanation (a) and (aa) into sub-
clauses (a) and (b) of clause (2) of Article 217 would show that a       F
person 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)] [Para 29][102-B-C]                                             G
       8. 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 two separate queues, one from judicial service and another
                                                                         H
92            SUPREME COURT REPORTS                        [2020] 8 S.C.R.


A    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. [Para 30][102-C-E]
B           9. 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. [Para 31][102-E-
C    F]
           10. Hopping on and hopping off from one queue to the other,
     is not permissible. Today, if any of the petitioners cease to be
     Judicial Officers and become Advocates, they may be eligible to
     be considered against the quota intended for the Bar. But while
D    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. [Para 32][102-F-G]
           11.1 The words “has held” and the words “has been” appear
     repeatedly in sub-clauses (a) and (b) as well as Explanation (a)
E    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 relation to a person from the category of advocate,
     sub-clause (b) uses the words “has been”. This is quite relevant
     for the reason that even in Explanation (a) and (aa) the words
F    “has held” always preceded the words “judicial office” and the
     words “has been” always preceded the word “advocate”.
     [Para 43][106-B-D]
            11.2 Explanation (a) confers the benefit of clubbing to a
     limited extent, to a person who has held a Judicial Office. To be
G    eligible for 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 mind of
     this Court. [Para 45][106-E-F]


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   R. POORNIMA AND ORS. v. UNION OF INDIA AND ORS.                     93


      P. Ramakrishnam Raju v. Union of India (2014) 12 SCC             A
      1 : [2014] 4 SCR 562; Mahesh Chandra Gupta v. Union
      of India (2009) 8 SCC 273 : [2009] 10 SCR 921; D. K.
      Sharma v. Union of India (2011) SCC Online Del 1773
      – inapplicable.
      Dheeraj Mor v. Hon’ble High Court of Delhi (2018) 4              B
      SCC 619 : [2018] 1 SCR 828; Vijay Kumar Mishra v.
      High Court of Judicature at Patna (2016) 9 SCC 313 :
      [2016] 3 SCR 806; Shri Kumar Padma Prasad v. Union
      of India (1992) 2 SCC 428 : [1992] 2 SCR 109 –
      referred to.
                                                                       C
                       Case Law Reference
[2014] 4 SCR 562           inapplicable               Para 11(i)
[2018] 1 SCR 828           referred to                Para 11(iii)
[2016] 3 SCR 806           referred to                Para 40          D
[2009] 10 SCR 921          inapplicable               Para 40
[1992] 2 SCR 109           referred to                Para 42
      CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil)
No. 1172 of 2019.
                                                                       E
      Under Article 32 of the Constitution of India
       R.S. Suri, ASG, Rakesh Dwivedi, Atmaram NS Nadkarni, Guru
Krishnakumar, Vinay Navare, P.S. Patwalia, M. Ajmal Khan, Sr. Advs.,
Kaustubh Shukla, Subhasish Bhowmick, Eklavya Dwivedi, Abhay Singh,
Piyush Beriwal, Ms. Priyanka Das, Arvind Kumar Sharma,                 F
D. L. Chidananda, Salvador Santosh Rebello, Alok Kumar Pandey,
Ashwin Kumar D.S., Deepayan Mandal, Arindam Ghosh, M. Yogesh
Kanna, K. V. Vijayakumar, Anish R. Shah, Sharan Thakur, Mahesh
Thakur, Siddhartha Thakur, Siddhartha Barua, P. V. Yogeswaran, M.P.
Parthiban, Parthiv K. Goswami, Ishan Bisht, Ms. Diksha Rai, M. A.
Chinnasamy, Ms. C. Rubavathi, P. Rajaram, V. Senthil Kumar,            G
A. Lakshminarayanan, Mrs. L. Maheswari, Sriram Parakkat,
M.S. Vishnu Sankar, Ms. Athira G. Nair, Sarath J., Deepak Singh, Ms.
Anupama, Sripathy K.R. (For M/s Lawfic), Senthil Jagadeesan,
Ms.Mrinal Kanwar, Ms. Sonakshi Malhan, Ms. Suriti Chowdhary, Advs.
for the appearing parties.                                             H
94            SUPREME COURT REPORTS                           [2020] 8 S.C.R.


A          The Judgment of the Court was delivered by
           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
B    Service have come up with this Writ Petition seeking the following reliefs:
                  “(a) Issue a Writ in the nature of a Writ of Certiorarified
           Mandamus or any other appropriate Writ, Order or Orders,
           Directions, to call for records relating to the last list of names
           recommended by the Hon’ble Chief Justice of High Court of
C          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 herein
           and consequently direct the Hon’ble Collegiums of the Madras
           High Court to consider the names of the Petitioners also for
D          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, Directions,
           directing the Respondents No. 1 to 4 to return the last list of
E          names for appointment as Judges of High Court, Madras
           recommended by the Hon’ble Chief Justice of High Court of
           Madras to the Hon’ble Chief Justice of India;
           AND
F                (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
G    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.

H
   R. POORNIMA AND ORS. v. UNION OF INDIA AND ORS.                            95
                  [S. A. BOBDE, CJI]

            Issue notice restricted to the question of the entitlement        A
      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.
                                                                              B
       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 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     C
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     D
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.                                  E
       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     F
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
                                                                              G
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.                                                      H
96               SUPREME COURT REPORTS                          [2020] 8 S.C.R.


A          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
B
     23.
            9. 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
C    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
D    are little different from the submissions made by Mr. Rakesh Dwivedi,
     learned Senior Counsel for the petitioners. Let us first deal with the
     contentions raised in the writ petition.
              11. In their pleadings, the Petitioners have pitched their claim on—

E             (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 India1 wherein this Court directed the number of
                   years of practice as advocate, to be added to the number of
F                  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 Morvs. Hon’ble High Court of
                    Delhi2 of the question whether for the purposes of Article
G
                    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 direct
                    recruitment to the post of District Judge.
     1
         (2014) 12 SCC 1
H    2
         (2018) 4 SCC 619
   R. POORNIMA AND ORS. v. UNION OF INDIA AND ORS.                            97
                  [S. A. BOBDE, CJI]

      12. At the outset, we shall point out that the ratio laid down in       A
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 compensated 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
                                                                              B
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 judgment dated
19.02.2020, a 3-member bench of this Court has answered the reference,        C
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 practice as an
advocate, but were serving in a judicial office on the date of application/   D
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 taking note of the     E
diverse views expressed by different benches of this Court 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 Petition in
September 2019. On the date on which the Petitioners filed the Writ           F
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-      G
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
                                                                              H
98                   SUPREME COURT REPORTS                        [2020] 8 S.C.R.


A                     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
B             (ii)    The decision in Vijay Kumar Mishra vs. High Court of
                      Judicature at Patna3 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.
C          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 pleadings, on the
     reference pending at that time in Dheeraj Mor, has become irrelevant.
D           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:

E                    “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, member of a
              judicial service of a State [Article 217 (a)] and an advocate
              with ten years’ experience [Article 217 (b)]. For the Supreme
              Court, Article 124 (3) (a) enables consideration of a person
F             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; Article
              124(3)(c) enables consideration of a distinguished jurist.
              Significantly, advocates with stipulated experience at the bar
G             are entitled, by express provisions of the Constitution [Articles
              233 (2), Article 217 (b) and Article 124 (3) (b)] to be
              considered for appointment to the District Courts, High Courts
              and the Supreme Court, respectively. However, members of
              the judicial service can be considered only for appointment
     3
H        (2016) 9 SCC 313
   R. POORNIMA AND ORS. v. UNION OF INDIA AND ORS.                             99
                  [S. A. BOBDE, CJI]

      (by promotion) as District Judges, and as High Court judges,             A
      respectively. Members of the judicial service cannot be
      considered for appointment to the Supreme Court. Likewise,
      academics or distinguished jurists, with neither practise at
      the Bar, nor any experience in the judicial service, can be
      considered for appointment as District Judge, or as High Court
                                                                               B
      judge.”
      19. Therefore, the very foundation upon which the Petitioners
have built their case, at least in their pleadings, is now gone. But
Mr. Rakesh Dwivedi, learned Senior Counsel for the petitioners
contended—
                                                                               C
      (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   D
clause (2) of Article 217 are in the alternative, but Article 217 does not
create separate streams for appointment, with independent 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 Advocate               E
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,        F
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            G
      a Judge of a High Court unless he is a citizen of India and—
             (a) has for at least ten years held a judicial office 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;                  H
100             SUPREME COURT REPORTS                             [2020] 8 S.C.R.


A                   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, there shall be
             included any period, after he has held any judicial office,
             during which the person has been an advocate of a High
B            Court or has held the office of a member of a tribunal or any
             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
C            any period during which the person [has held judicial office
             or the office of a member of a tribunal or any post, under 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
D            held judicial office in the territory of India or been an
             advocate of a High Court, there shall be included any period
             before the commencement of this Constitution during which
             he has held judicial office in any area which was comprised
             before the fifteenth day of August, 1947, within India as
             defined by the Government of India Act, 1935, or has been
E            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 clause (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
F     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 first of
      which is in sub-clauses (a) and (b) and the second in Explanation (a) and
G     (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 either held a
      judicial office for 10 years or been an Advocate of a high court for 10
      years.
             23. Suppose there was no ‘Explanation’ under clause (2) of Article
H     217, then there would have been no scope for any argument, other than
   R. POORNIMA AND ORS. v. UNION OF INDIA AND ORS.                               101
                  [S. A. BOBDE, CJI]

to accept blindly, that the qualification stipulated in clause (2) of Article    A
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-
                                                                                 B
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 clause (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         C
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).                                                                             D
       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 Officer, 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        E
held the office of a member of a Tribunal. Similarly, Explanation (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.
                                                                                 F
       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             G
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”
                                                                                 H
102                SUPREME COURT REPORTS                         [2020] 8 S.C.R.


A     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 person may
B     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)]
C            (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
D     must take his place in one of the queues. There are 2 separate 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.
E
             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
F     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 be Judicial
      Officers and become Advocates, they may be eligible to be considered
      against the quota intended for the Bar. But while continuing as Judicial
G     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
H     to the post of District Judges, before the contesting respondents got
   R. POORNIMA AND ORS. v. UNION OF INDIA AND ORS.                               103
                  [S. A. BOBDE, CJI]

promoted as District Judges. In other words, for the purpose of seniority,       A
the petitioners went solely by the date of recruitment to the 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
                                                                                 B
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        C
convenience. For filling up the vacancies under the service quota, 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 undertake 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-most        D
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   E
the qualifying criteria, if the argument of the petitioners 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       F
for the limited number of vacancies, a seniority list is maintained and a
particular number of officers are taken in the zone of consideration,
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.    G
This is nothing but a self-serving argument.
       35. As pointed out earlier, the petitioners were appointed 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
                                                                                 H
104             SUPREME COURT REPORTS                           [2020] 8 S.C.R.


A     this writ petition on 06.12.2019, they have agreed to delete prayer A and
      confine themselves to prayer B, which is just for returning 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-clause
B
      (a) of clause (2) of Article 217 and at that time they can claim the
      benefit of seniority over and above the contesting respondents.
             36. Referring to the discussions that took place in the Drafting
      Committee of the Constitution, on the amendments proposed to the Draft
      of Article 193(2)(b) of the Constitution, which corresponds to the present
C     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 “Comments and
D     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-
E           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 amendment is
F           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 district
            judge will not be eligible to be appointed as a High Court
            judge whereas a member of the Provincial Judicial Service
            who has served as a ‘munsif’ for only ten years will be eligible
G           to be so appointed, which is certainly anomalous. This
            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 advocates on the
      date of consideration.
H
      R. POORNIMA AND ORS. v. UNION OF INDIA AND ORS.                           105
                     [S. A. BOBDE, CJI]

       38. But the above argument loses sight of the fact that Article          A
217(2)(b) relates to the stream of advocates. When it comes 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 (44th Amendment) Act, 1978 with effect from            B
20.06.1979. What was Explanation (a) till then, became Explanation (aa)
by the same Amendment. Therefore, the benefit of the 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               C
of India4, and the decision of the Delhi High court in D.K. Sharma vs
Union of India5 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             D
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 of this         E
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 have been an
Advocate to become eligible for consideration. Therefore, if the petitioners    F
want to be considered from the category as advocates, irrespective 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               G
followed the ratio in Mahesh Chandra Gupta.


4
    (2009) 8 SCC 273
5
    2011 SCC Online Del 1773
                                                                                H
106                SUPREME COURT REPORTS                       [2020] 8 S.C.R.


A           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 India6 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
B
      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
C     service, sub-clause (a) uses the words “has held”. But in relation to a
      person from the category of advocate, sub-clause (b) uses the 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 “judicial
      office” and the words “has been” always preceded the word “advocate”.
D            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
E     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 for the limited
F     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
G     an advocate, does not appeal to us. In fact, Article 217(2) does 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
H         (1992) 2 SCC 428)
   R. POORNIMA AND ORS. v. UNION OF INDIA AND ORS.                                107
                  [S. A. BOBDE, CJI]

an advocate. Therefore, the argument based upon Article 14 does not               A
impress us.
      47. It was also contended that a few persons whose names are
mentioned in Paragraph 16 of the Writ Petition, got appointed 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                  B
number of years of practise at the Bar. The factual situation that prevailed
in those cases is not available. In any case a majority of those whose
names are mentioned in Para 16 of the Writ Petition, got appointed to
the High Court before Constitution (44th Amendment) Act, 1978.
Therefore, we do know what was done in those cases.
                                                                                  C
      48. Therefore, in fine, we are of the considered view that the
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.
                                                                                  D
Ankit Gyan                                             Writ petition dismissed.




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