Appointment of a District Judge
Dheeraj
Mor vs Honble High Court Of Delhi
Appointment
of a District Judge:
Learned
counsel for the appellant has also drawn our attention to Explanation I to cl.
(3) of Art. 124 of the Constitution relating to the qualifications for
appointment as a Judge of the Supreme Court and to the explanation to cl. (2)
of Art. 217 relating to the qualifications for appointment as a Judge of a High
Court, and has submitted that where the Constitution makers thought it
necessary they specifically provided for counting the period in a High Court
which was formerly in India. Articles 124 and 217 are differently worded and
refer to an additional qualification of citizenship which is not a requirement
of Art. 233, and we do not think that cl. (2) of Art. 233 can be interpreted in
the light of explanations added to Arts. 124 and 217. 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. The clause does not say how that standing must be reckoned and
if an Advocate of the Punjab High Court is entitled to count the period of his
practice in the Lahore High Court for determining his standing at the Bar, we
see nothing in Art. 233 which must lead to the exclusion of that period for
determining his eligibility for appointment as district judge.
What will
be the result if the interpretation canvassed for on behalf of the appellant is
accepted? Then, for seven years beginning from August 15, 1947, no member of
the Bar of the Punjab High Court would be eligible for appointment as district
judge a result which has only to be stated to demonstrate the weakness of
the argument. We have proceeded so far on the first two submissions of learned
counsel for the appellant, and on that basis dealt with his third submission.
It is perhaps necessary to add that we must not be understood to have decided
that the expression ‘has been’ must always mean what learned counsel for the
appellant says it means according to the strict rules of grammar. It may be
seriously questioned if an organic Constitution must be so narrowly
interpreted, and the learned Additional SolicitorGeneral has drawn our
attention to other Articles of the Constitution like Art. 5(c) where in the
context the expression has a different meaning. Our attention has also been
drawn to the decision of the Allahabad High Court in Mubarak Mazdoor v. K.K.
Banerji, AIR 1958 All 323, where a different meaning was given to a similar
expression occurring in the proviso to subsec. (3) of S. 86 of the
Representation of the People Act, 1951. We consider it unnecessary to pursue
this matter further because the respondents we are now considering continued to
be advocates of the Punjab High Court when they were appointed as district
judges and they had a standing of more than seven years when so appointed. They
were clearly eligible for appointment under cl. 2 of Art. 233 of the
Constitution.
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Read more about citizenship here
Note: This is not the complete
judgment. Consists of only relevant portion of the original judgment.
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India has one common citizenship and
every citizen should feel that he is Indian first irrespective of other basis.
In this view, any measure at bringing about equality should be welcome.
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