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The Allahabad high court has asked the Supreme Court to adopt a “hands off” approach to promotion criteria for district judiciary, arguing the Constitution vests this power in the high courts.
Senior advocate Rakesh Dwivedi, who appeared for the high court on Wednesday, argued that the high courts should not be divested of this authority. “Article 227(1) gives high courts superintendence over the district judiciary. The Supreme Court should leave it to the high courts to frame the criteria for adequate promotional avenues for promotees and directly recruited district judges,” he told a five-judge Constitution bench on Wednesday.
The bench of Chief Justice of India Bhushan R Gavai and justices Surya Kant, Vikram Nath, K Vinod Chandran, and Joymalya Bagchi said there has to be some uniformity, even as they do not even remotely wish to take away the discretion of the high courts in this regard.
On October 14, the Supreme Court agreed to refer the matter of determining seniority in the higher judicial service to a Constitution bench. This came after amicus curiae and senior advocate Siddharth Bhatnagar filed an application in an All India Judges Association petition for improving service conditions of judicial officers. Bhatnagar raised concerns over the career stagnation of judges.
The five-judge bench began hearing the matter on Tuesday after Bhatnagar argued that promoted judges deserved a better deal in promotions. The Supreme Court was told that the promotees, who join as civil judges, take decades to become district judges, as compared to directly recruited judges in several states.
Bhatnagar said out of 70 district and sessions judges in Uttar Pradesh, 58 were directly recruited and 12 were promoted. In the Allahabad high court, out of 257 elevated judges, 137 were promotees and 118 direct recruits.
Bihar, Haryana, Punjab, Kerala, Rajasthan, Gujarat, Assam, and Andhra Pradesh also had a lopsided representation of promoted judges. Promotees occupied a majority of senior posts in the district judiciary in Chhattisgarh, Himachal Pradesh, Jharkhand, Madhya Pradesh, Tamil Nadu, Uttarakhand, West Bengal, Jammu and Kashmir, and Delhi.
The Allahabad high court said fixing a uniform criterion would be disastrous and weaken high courts rather than strengthening them. Dwivedi argued that the problem cited was not in all states. “I do not seek to give any suggestion but would persuade this [Supreme] court to adopt a hands-off approach on this issue.” He explained that service conditions varied across states.
Dwivedi argued that determining what is best in the interest of the district judiciary should be left to the respective high courts. “I dissuade the court from issuing any directions as it will result in creating an imbalance,” he said
Senior advocate Maninder Acharya, who appeared for the Punjab and Haryana high court, backed the stand. She said the judges coming up through promotion are getting their due thanks to the regular recruitments and promotions.
Acharya said in the past decade (2015-2025), out of the 16 judicial officers elevated to the high court, 13 were the promotees. “Even the average age of promotee judges entering the high court is 57, while that of directly recruited judges is 55.”
Dwivedi noted that the Supreme Court was acting upon Bhatnagar’s application even when data from all high courts was unavailable. “Unless data is accurately presented, there is a grave danger that may result in an imbalance to creep in where there is already balance.”
The Supreme Court said that it is up to the high courts to provide data. “In this matter, all high courts have been duly served with notices. We do not understand why you are averse to having a uniform criterion for recruitment in the district judiciary. It is not to usurp your powers.”
A group of directly recruited district judges of the Delhi and Kerala high courts also opposed any quota or special consideration in promotion to the promoted judges.
The Supreme Court maintained that it would only be concerned about a general rule and would not consider the situation state-wise. It posted the matter for further hearing on November 4 as the arguments remained inconclusive.
