despite being the senior­most in the cadre of District Judges, they have been. overlooked and their juniors now recommended for elevation to the High Court as Judges.

despite being the
senior­most in the cadre of District Judges, they have been
overlooked and their juniors now recommended for elevation to the
High Court as Judges.

REPORTABLE
IN THE SUPREME COURT OF INDIA
ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 1172 OF 2019
R. POORNIMA AND ORS. … PETITIONER(S)
VERSUS
UNION OF INDIA AND ORS. …RESPONDENT(S)
J U D G M E N T
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 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 Madras to the Hon’ble Chief Justice of India for
    1
    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 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 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
    (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 self­explanatory and
    hence 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.
    Issue notice restricted to the question of the
    entitlement of the petitioners to be considered by virtue of
    having put in 18 years, as claimed.
    2
    Dasti service, in addition, is permitted.”
  3. We have heard the learned counsel for the parties.
  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 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
    Nos. 24 to 29 are the senior­most, 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.
    3
  6. The short grievance of the petitioners is that despite being the
    senior­most 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 217(2) of the Constitution of India. The
    contention of the Petitioners is that to determine the eligibility of a
    person, sub­clauses (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
    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.
  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
    4
    recruited as District Judges. This is how and why the petitioners
    became seniors to the respondents 5 to 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 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
    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—
    (i) a cumulative reading of sub­clauses (a) and (b) of clause (2)
    of Article 217 and Explanation (a) and (aa) thereunder;
    5
    (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
    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 Mor vs. Hon’ble High Court of
    Delhi2
    of the question whether for the purposes of Article
    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.
  12. At the outset, we shall point out that the ratio laid down in 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
    1 (2014) 12 SCC 1
    2 (2018) 4 SCC 619
    6
    same ratio while 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 3­member bench of this Court has answered
    the reference, 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/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 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.
    7
  15. The Petitioners herein filed the present Writ Petition in
    September 2019. On the date on which the Petitioners filed the Writ
    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 threemember 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
    cut­off date and also at the time of appointment as District
    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
    (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
    3 (2016) 9 SCC 313
    8
    direct recruitment, does not lay down the law correctly and
    hence, overruled.
  17. Therefore, for the purpose of Article 233, it is not permissible
    anymore, for people to hop­on and hop­off 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.
  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:
    “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 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
    9
    distinguished jurist. Significantly, advocates with
    stipulated experience at the bar 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 (by
    promotion) as District Judges, and as High Court judges,
    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 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

    (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 sub­clauses (a) and (b) of
    clause (2) of Article 217 are in the alternative, but Article 217 does
    10
    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 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, 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
    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;
    Explanation.—For the purposes of this clause—
    11
    (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
    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
    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
    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 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
    the qualification for appointment under the 2 sub­clauses (a) and (b).
    Then it stipulates the method of reckoning such qualification, under
    the 2 limbs of the Explanation.
    12
  22. Actually, clause (2) of Article 217 has 2 parts, the first of which
    is in sub­clauses (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.
  23. Suppose there was no ‘Explanation’ under clause (2) of Article
    217, then there would have been no scope for any argument, other
    than to accept blindly, that the qualification stipulated in clause (2) of
    Article 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 Sub­clauses (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 Merriam­webster 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 sub­clauses (a) and (b).
    13
  24. 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 sub­clauses (a) and (b) are to be
    construed. Interestingly, the Explanation under clause (2) of Article
    217 also has 2 parts, one going with sub­clause (a) and another going
    with sub­clause (b).
  25. Explanation (a) goes with sub­clause (a) and Explanation (aa)
    goes with sub­clause (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 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.
  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.
    14
  27. 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”.
  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” 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 sub­clauses (a)
    and (b) of clause (2) of Article 217 would show that a 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)]
    15
  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 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.
  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 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 Officers, they cannot seek to invoke Explanation (a) as it
    16
    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 to the post of District Judges, before the contesting
    respondents got promoted as District Judges. In other words, for the
    purpose of seniority, 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 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 convenience. For filling up the vacancies under the
    service quota, the collegiums of the High courts consider the ACRs
    17
    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 senior­most 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 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 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
    18
    even the practice at the Bar to be clubbed. This is nothing but a selfserving 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 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 sub­clause (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 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
    19
    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 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
    sub­clause (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 sub­clause (b) of clause (2) of
    article 193 only to practising lawyers. If this amendment
    is 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 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.
    20
  38. But the above argument loses sight of the fact that Article
    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
    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 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
    appointment of members of the Income Tax Appellate Tribunal as
    4 (2009) 8 SCC 273
    5 2011 SCC Online Del 1773
    21
    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 Court in the said case was “whether
    actual practise as against the right to practise is a pre­requisite
    constitutional requirement of the eligibility criteria under Article
    217(2)(b)”. Sub­clause (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 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 followed the ratio in Mahesh Chandra Gupta.
  42. It is relevant to note that the expression “judicial office”
    appearing in Article 217(2)(a) was interpreted in Shri Kumar Padma
    22
    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 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 sub­clauses (a) and (b) as well as Explanation (a) and
    (aa) under Article 217(2). In relation to a person from the category of
    judicial service, sub­clause (a) uses the words “has held”. But in
    relation to a person from the category of advocate, sub­clause (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”.
  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
    6 (1992) 2 SCC 428)
    23
    that we 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 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 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 an advocate. Therefore, the argument based
    upon Article 14 does not 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
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    High Court without completing 10 years of service as District Judges.
    But we do not know whether they got so appointed by clubbing the
    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.
  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.
    ………………………..CJI.
    (S.A. Bobde)
    ……………………………J.
    (A.S. Bopanna)
    ……………………………J.
    (V. Ramasubramanian)
    New Delhi
    September 04, 2020
    25