Thursday, 16 May 2019

Supreme Court: In-service candidates should not be appointed against quota reserved for practising Advocate

In these matters, it is in dispute as to whether the
incumbents who have joined the services as Civil Judge can stake
their claims for the posts meant for direct recruitment from the
Bar reserved for practicing advocates for appointment as District

Judges. Since there is a quota in the direct recruitment of Bar
Members, in order to attract talent from the Bar out of practicing
advocates. 
It is settled proposition of law that final relief cannot be
granted by way of interim measure. When direct recruitment has to
be from Bar, we cannot continue to grant interim order of final
nature leaving the situation virtually irreversible, an incumbent
from Bar has to be deprived of the post given to in-service
candidate which is reserved for Bar, question of seniority would
also arise and in case relief is not finally granted several other
complications would arise. In any case such ad-hoc arrangements by
appointing such incumbents is not at all warranted that too in
higher judiciary unless and until the case is decided in favour of
in-service candidates.
We make it clear that we are not disturbing the appointments
which have been made so far by virtue of such interim orders.
However, no new appointments be made from now onwards of in-service
candidates against quota reserved for Bar. In case even if
in-service candidate has been selected in the examination held
earlier as against the Bar quota no further appointment to be made
of such candidates.

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 14156/2015


DHEERAJ MOR  Vs HONBLE HIGH COURT OF DELHI 

Date : 10-05-2019
CORAM :
 MR. JUSTICE ARUN MISHRA
 MR. JUSTICE NAVIN SINHA



UPON hearing the counsel the Court made the following
O R D E R
In these matters, it is in dispute as to whether the
incumbents who have joined the services as Civil Judge can stake
their claims for the posts meant for direct recruitment from the
Bar reserved for practicing advocates for appointment as District

Judges. Since there is a quota in the direct recruitment of Bar
Members, in order to attract talent from the Bar out of practicing
advocates. There are separate quota of promotional posts for the
incumbents who have joined the services as Civil Judge to the post
of District Judge. There is a set procedure for that and there is
a merit promotion quota which has to be made by virtue of the
limited departmental examination as held in All India Judges’
Association & Ors. v. Union of India and Ors. (2002) 4 SCC 247 and
followed in All India Judges’ Association & Ors. v. Union of India
And Ors. - (2010) 15 SCC 170. Nowhere it is provided that such inservice
incumbents can stake their claim as against posts which are
reserved for direct recruitment from the Bar.
It was contended that in certain cases, interim relief has
been granted by this Court and by virtue of the interim directions
issued, certain in-service incumbents participated in the exam and
other process by staking claim to be appointed in the quota which
is basically meant for lawyers. Since the entitlement of Civil
Judges to occupy posts of Bar quota is yet to be decided by hearing
matter finally and in case such interim orders are continued to be
granted and the Civil Judges from the judiciary are permitted to be
appointed as against the quota which basically meant for practicing
lawyers, serious prejudice may be caused to the Bar incumbents. In
the past, for the last 65-66 years no person from the Civil Judge
cadre were permitted to stake their claims as against the posts
which are reserved for direct recruitment from the Bar.

It is settled proposition of law that final relief cannot be
granted by way of interim measure. When direct recruitment has to
be from Bar, we cannot continue to grant interim order of final
nature leaving the situation virtually irreversible, an incumbent
from Bar has to be deprived of the post given to in-service
candidate which is reserved for Bar, question of seniority would
also arise and in case relief is not finally granted several other
complications would arise. In any case such ad-hoc arrangements by
appointing such incumbents is not at all warranted that too in
higher judiciary unless and until the case is decided in favour of
in-service candidates.
It was also contended that in Dheeraj Mor case, certain
interim orders have been passed allowing the members of the
judicial service to stake their claims for the posts which are
meant to be filled by the direct recruitment from the Advocates. In
the circumstances, for years together such interim orders cannot be
granted nor interim orders can be treated as a precedent. As they
are creating more complications and the question of entitlement of
in-service candidates has been referred to Larger Bench which will
take call on it. It is considered appropriate that quota meant for
the Bar no more filled by in-service candidates. However, the
recruitment from Bar shall be subject to the final outcome of the
matter which has been referred. We are of the considered opinion
that we cannot direct any more appointment by way of interim orders
of Civil Judges as against posts meant for practicing advocates or

allow the judiciary members to participate in such examination to
make position worse. Serious complications would arise in case
ultimately in-service candidates are not found eligible for such
quota. As such we are not inclined to pass any further interim
orders either by permitting in service candidates to stake their
claims in the examination or for being appointed as against the
quota reserved for Bar. It would not be proper to stop all
recruitments for years together, so as to prevent complications as
to seniority as well as the quota which is required to be
maintained.
It was submitted that if such an anomaly is permitted to be
continued, the posts reserved for the Bar members in the High Court
too will have to be filled even from the District Judges who might
have earlier practiced for 10 years. Be that as it may, as we are
not on that issue, in the facts and circumstances of the case, we
find that it is not appropriate to pass such interim orders any
more. As the matter is urgent, we request Hon’ble The Chief
Justice to post the matter before appropriate Bench for hearing it
finally as early as possible.
We make it clear that we are not disturbing the appointments
which have been made so far by virtue of such interim orders.
However, no new appointments be made from now onwards of in-service
candidates against quota reserved for Bar. In case even if
in-service candidate has been selected in the examination held
earlier as against the Bar quota no further appointment to be made
of such candidates. However, the practicing advocates who have been

found selected for appointment, their result be declared and they
be appointed subject to the outcome of the pending matter.
(ASHA SUNDRIYAL) (JAGDISH CHANDER)
COURT MASTER BRANCH OFFICER
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