Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/INHERENT/ORIGINAL JURISDICTION
2025 INSC 965
CIVIL APPEAL NO. 3947 OF 2020
REJANISH K.V ….APPELLANT
VERSUS
K. DEEPA AND OTHERS .…RESPONDENTS
With
WRIT PETITION (C) NO. 759 OF 2017
WRIT PETITION (C) NO. 1278 OF 2019
REVIEW PETITION (C) NO. 381 OF 2021
IN
WRIT PETITION (C) NO. 396 OF 2018
REVIEW PETITION (C) NO. 385 OF 2021
IN
CIVIL APPEAL NO. 1700 OF 2020
REVIEW PETITION (C) NO. 1027 OF 2021
IN
WRIT PETITION (C) NO. 405 OF 2016
REVIEW PETITION (C) NO. 379 OF 2021
IN
WRIT PETITION (C) 578 OF 2018
MISCELLANEOUS APPLICATION NO. 179 OF 2021
IN
WRIT PETITION(C) NO. 405 OF 2016
REVIEW PETITION (C) NO. 669 OF 2021
IN
WRIT PETITION (C) NO. 999 OF 2019
REVIEW PETITION (C) NO. 380 OF 2021
Signature Not Verified
Digitally signed by
DEEPAK SINGH
Date: 2025.08.12
17:15:25 IST
Reason:
IN
WRIT PETITION (C) NO. 222 OF 2017
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MISCELLANEOUS APPLICATION NO. 1050 OF 2021
IN
CIVIL APPEAL NO. 1698 OF 2020
REVIEW PETITION (C) NO. 781 OF 2021
IN
WRIT PETITION (C) NO. 316 OF 2017
REVIEW PETITION (C) NO. 774 OF 2021
IN
WRIT PETITION (C) NO. 744 OF 2019
REVIEW PETITION (C) NO. 780 OF 2021
IN
WRIT PETITION (C) NO. 602 OF 2016
REVIEW PETITION (C) NO. 853 OF 2021
IN
WRIT PETITION (C) NO. 1080 OF 2019
REVIEW PETITION (C) NO. 621 OF 2021
IN
CIVIL APPEAL NO. 1698 OF 2020
REVIEW PETITION (C) NO. 868 OF 2021
IN
WRIT PETITION (C) NO. 414 OF 2016
REVIEW PETITION (C) NO. 867 OF 2021
IN
WRIT PETITION (C) NO. 405 OF 2016
REVIEW PETITION (C) NO. 782 OF 2021
IN
WRIT PETITION (C) NO. 639 OF 2018
WRIT PETITION (C) NO. 857 OF 2021
REVIEW PETITION (C) NO. 989 OF 2021
IN
TRANSFER PETITION (C) NO. 272 OF 2018
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REVIEW PETITION (C) NO. 996 OF 2021
IN
CIVIL APPEAL NO. 1703 OF 2020
WRIT PETITION (C) NO. 864 OF 2021
REVIEW PETITION (C) NO. 835 OF 2021
IN
CIVIL APPEAL NO. 1704 OF 2020
REVIEW PETITION (C) NO. 836 OF 2021
IN
CIVIL APPEAL NO. 1706 OF 2020
REVIEW PETITION (C) NO. OF 2025
@ DIARY NO. 18470 OF 2021
REVIEW PETITION (C) NO. 1354 OF 2021
IN
CIVIL APPEAL NO. 1698 OF 2020
REVIEW PETITION (C) NO. 1042 OF 2022
IN
WRIT PETITION (C) NO. 999 OF 2019
CIVIL APPEAL NO. OF 2025
[ARISING OUT OF SLP (C) NO. 3076 OF 2023]
J U D G M E N T
B.R.GAVAI, CJI
1. The present batch of petitions in effect seek review
th
of the judgment and order dated 19 February 2020
passed by this Court in the case of Dheeraj Mor v.
1
Hon’ble High Court of Delhi (hereinafter referred to as
1
(2020) 7 SCC 401
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“ JUR ”) wherein a Bench of three learned Judges held that
the members of the judicial service of a State could be
appointed as district judges either by way of promotion or
the Limited Departmental Competitive Examination
(LDCE). It was further held that under Article 233(2) of
the Constitution, an advocate or pleader with 7 years of
practice could be appointed as district judge by way of
direct recruitment, in case he is not already in the judicial
service of the Union or a State. Thus, it was held that the
rules framed by the High Court debarring judicial officers
from staking their claim as against the posts reserved for
direct recruitment from Bar would not be ultra vires to the
Constitution.
2. Along with the review petitions, many other writ
petitions as well as special leave petitions have been filed,
inter-alia , praying for a declaration that even those
judicial officers who have an experience of seven years at
the Bar prior to their joining as judicial officers would be
entitled to be appointed as district judges via direct
recruitment under Article 233(2) of the Constitution.
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3. We have heard Shri Jayant Bhushan, Shri Dama
Seshadri Naidu, Dr. Menaka Guruswamy, Shri V. Giri,
Shri Anand Sanjay M Nuli, Shri Shoeb Alam, Shri Rajive
Bhalla, learned Senior Counsel and other counsel
appearing for different parties praying that the question
with regard to interpretation of Article 233(2) of the
Constitution requires consideration by a Constitution
Bench of this Court.
4. We have also heard Shri Nidhesh Gupta, Shri C.U.
Singh, Shri Jaideep Gupta, Shri A. Hariprasad, Shri
Shekhar G Devasa, Shri A. M. Bujor Barua, Shri R.
Basant, learned Senior Counsel and other counsel
praying that such a Reference is not necessary.
5. Learned counsel supporting the Reference have
drawn the attention of this Court to the case of G.
Sabitha and others v. High Court of Judicature at
2
Hyderabad Rep. by its Registrar General and others
th
wherein vide order dated 10 May, 2018, this Court had
recorded that the issue as to “whether the judicial officer
who has already completed seven years in Bar being
2
Writ Petition (Civil) No. 316 of 2017
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recruited for subordinate judicial services would be
entitled for appointment as Additional District Judge
against the Bar vacancy is pending consideration before
the Constitution Bench in SLP(C) No.14156 of 2015”.
6. It is submitted that in the said SLP(C) No. 14156 of
2015 i.e., JUR , though the issue was referred to a
Constitution Bench, the same came to be decided by a
Bench consisting of three learned Judges of this Court.
7. Attention of this Court is further drawn to the order
rd 3
dated 23 January, 2018 passed by this Court in the
JUR wherein after considering the different views in
various pronouncements, this Court had found that the
issue involved substantial question of law as to the
interpretation of Article 233(2) of the Constitution.
Therefore, this Court directed the matter to be placed
before Hon’ble the Chief Justice of India for constitution
of an appropriate Bench.
8. It is submitted that in view of the issue involving
interpretation of Article 233(2) and the language used in
Article 145(3) of the Constitution, the matter ought to
3
(2018) 4 SCC 619
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have been referred to a Bench consisting of five learned
Judges and could not have been referred to a Bench of
three learned Judges. It is, therefore, submitted that it is
in the interest of justice that the matter be referred to a
Bench consisting of five learned Judges of this Court.
9. As against this, the learned counsel opposing the
Reference submitted that the JUR only culls out the
principle laid down by this Court in various decisions
including the Constitution Bench judgments of this Court
in the cases of Rameshwar Dayal v. the State of Punjab
4
and Others and Chandra Mohan v. State of Uttar
5
Pradesh and Others .
rd
10. It is submitted that in view of the order dated 23
January, 2018 since the Reference was made by the Chief
Justice of India to a Bench comprising of three learned
Judges, the Bench has only laid down the law relying
upon the earlier Constitution Bench judgments and
therefore, a fresh Reference would not be necessary.
4
(1960) SCC OnLine SC 123; (1961) 2 SCR 874
5
(1966) SCC OnLine SC 35; (1967) 1 SCR 77
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11. Various other issues on the merits of the matter(s)
have also been pressed by the learned counsel. However,
we do not find it necessary to refer to them inasmuch as,
at this stage, we are only concerned with the question as
to whether the issue involving interpretation of Article
233(2) requires to be referred to a Constitution Bench of
this Court or not?
12. Insofar as the reliance placed by the learned counsel
opposing the Reference on the judgment of the
Constitution Bench of this Court in the case of
Rameshwar Dayal (supra) is concerned, this Court was
considering the question with regard to the candidates
who had been enrolled as the advocates of the Lahore
High Court on various dates between 1933 and 1940. The
contention raised was that after the partition of the
country which led to the establishment of a High Court of
Judicature for the Province of East Punjab i.e., Punjab
th
High Court on 15 August, 1947, since the said
candidates did not have 7 years’ standing as advocates in
the Courts in India, they did not fulfil the requirement of
Article 233(2) when they were appointed as district
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judges. The question, therefore, was as to whether the
years of practice that the said candidates had in Lahore
High Court before the partition of the country and before
the establishment of the Punjab High Court would also be
taken into consideration for the purpose of counting of the
period of 7 years. To answer the said question, the
Constitution Bench of this Court placed reliance on
Clause 6(2) of the High Court (Punjab) Order, 1947 read
with Section 8(3) of the Bar Council Act, 1926 to hold that
an Advocate of the Punjab High Court was entitled to
count the period of his practice in the Lahore High Court
for determining his standing in the Bar.
13. Insofar as the judgment of the Constitution Bench
in Chandra Mohan (supra) is concerned, the question
that arose for consideration before this Court was whether
the Governor can appoint as district judges, persons from
services other than judicial service, that is to say, whether
the Governor can appoint a person who is in the police,
excise, revenue or such other services as a district judge?
Answering the said question, this Court observed that
acceptance of this position would take us back in the pre-
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independence days and that too to the conditions
prevailing in the Princely States when appointments in
the judicial service were made from police and other
departments. This Court observed that this would hit the
very principle of judiciary being an independent service.
14. The Constitution Bench in Chandra Mohan (supra)
observed that though Article 233(1) of the Constitution is
nothing more than a declaration of the general power of
the Governor in the matter of appointment of district
judges, it does not lay down the qualifications of the
candidates to be appointed or denote the sources from
which the recruitment has to be made. It was further
observed that the sources for the appointment of district
judges were indicated in Clause (2) of Article 233 which
provided two sources, namely, (i) persons in the service of
the Union or of the State, and (ii) advocate or pleader. The
Court was posed with a question as to whether the service
of the Union or of the State would mean any service of the
Union or of the State or does it mean the judicial service
of the Union or of the State. The Court observed that
sources indicated that the term “service” mentioned
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therein is the service pertaining to the court. The
Constitution Bench also relied on Article 236(b) which
defines the expression “judicial service” to mean a service
consisting exclusively of persons intended to fill the post
of district judge and other civil judicial posts inferior to
the post of district judge. The Constitution Bench,
therefore, held that the term “service” mentioned under
Article 233(2) of the Constitution can only mean the
judicial service.
15. As such, the questions that came up for
consideration before both the Constitution Benches in the
cases of Rameshwar Dayal (supra) and Chandra
Mohan (supra) are different from the one which arises for
consideration in the present matters.
16. At this juncture, it will be apposite to refer to Article
145(3) of the Constitution which reads thus:
“145. Rules of Court, etc
xxxx xxxx xxxx
(3) The minimum number of Judges who are
to sit for the purpose of deciding any case
involving a substantial question of law as to
the interpretation of this Constitution or for
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the purpose of hearing any Reference under
Article 143 shall be five :
Provided that, where the Court hearing an
appeal under any of the provisions of this
Chapter other than Article 132 consists of less
than five Judges and in the course of the
hearing of the appeal the Court is satisfied that
the appeal involves a substantial question of
law as to the interpretation of this Constitution
the determination of which is necessary for the
disposal of the appeal, such Court shall refer
the question for opinion to a Court constituted
as required by this clause for the purpose of
deciding any case involving such a question and
shall on receipt of the opinion dispose of the
appeal in conformity with such opinion.”
[emphasis supplied]
17. It can thus be seen that Article 145(3) of the
Constitution provides that the minimum number of
Judges, for the purpose of deciding any case involving a
substantial question of law as to the interpretation of the
Constitution or for the purpose of hearing any Reference
under Article 143 shall be five.
18. A Bench of three learned Judges of this Court in the
6
case of Janhit Abhiyan v. Union of India and Others
6
(2021) 11 SCC 78
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to which one of us, B.R. Gavai, J (as he then was) was a
member, has observed thus:
“ 21. As such, we are of the view that such
questions do constitute substantial questions of
law to be considered by a Bench of five Judges.
22. It is clear from the language of Article
145(3) of the Constitution and Order XXXVIII
Rule 1(1) of the Supreme Court Rules, 2013, the
matters which involve substantial questions of
law as to interpretation of constitutional
provisions they are required to be heard by a
Bench of five Judges….”
19. Being conscious of the position as emanates from
Article 145(3), as also of the fact that the issues involved
require interpretation of Article 233(2) of the Constitution,
rd
this Court vide order dated 23 January, 2018 had
directed the matter to be placed before the Chief Justice
of India in which subsequently JUR was pronounced.
20. Ordinarily, in view of the question involving
interpretation of Article 233(2), the matter ought to have
been placed before a Bench of five learned Judges.
However, it appears that the same was placed before the
Bench of three learned Judges and the JUR was delivered.
21. We are, therefore, of the considered view that the
issues involved in the present batch of petitions ought to
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have been decided by a Constitution Bench of not less
than five Judges.
22. At this stage, it will also be relevant to refer to Article
233(2) of the Constitution which reads thus:
“ 233. Appointment of district judges
xxxx xxxx xxxx
(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 an advocate or a pleader
and is recommended by the High Court for
appointment.”
23. Upon a perusal of the text of Article 233(2) and in
light of the submissions advanced by the learned counsel
for the parties on the interpretation of the provision, we
are of the considered view that the following two issues
are substantial question of law as to the interpretation of
Article 233(2) of the Constitution:
(i) Whether a judicial officer who has already
completed seven years in Bar being recruited for
subordinate judicial services would be entitled for
appointment as Additional District Judge against
the Bar vacancy?
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(ii) Whether the eligibility for appointment as a
District Judge is to be seen only at the time of
appointment or at the time of application or both?
24.
In view of the discussion above, we pass the
following order:
i. We refer the aforesaid issues for consideration of a
Constitution Bench of five Judges of this Court;
ii. The Registry is directed to place the matter before
the Chief Justice of India on the administrative side
for obtaining appropriate orders; and
iii. This batch of petitions would be heard after the
Reference is decided by the Constitution Bench.
..………………………CJI
[B.R.GAVAI]
..…..………………………J
[K. VINOD CHANDRAN]
….…………………………J.
[N.V. ANJARIA]
NEW DELHI,
AUGUST 12, 2025
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