Three years practice for Civil Judge (Junior Division) recruitment: A welcome move

The Supreme Court in All India Judges Association (IV) v. Union of India held that three years' practice as an advocate is mandatory before a candidate becomes eligible for appointment to the Civil Judge (Junior Division) post. It held that the candidate’s experience would be counted from the date on which provisional enrollment as advocate has been granted by the concerned Bar Council.

To arrive at the aforesaid conclusion, the Court reasoned,

“…exposure to courts and more particularly litigants and their briefs would acquaint them with the onerous duties and responsibilities of every stakeholder in the judicial system. It would bring in a sensitivity to human problems, more clarity in the decision making process and educate them of the role of the Bar in justice dispensation”.

While this direction of the Court has received criticism from academicians, from the perspective of practicing lawyers in trial courts, it is a welcome move.

The Constitution of India provides for seven years of practice as an advocate for appointment as district judge under Article 233(2). However, it has not made any specific provision pertaining to the eligibility criteria for the Junior-level Civil Judge post. It is pertinent to note that Article 234 empowers the State Public Service Commission and the High Court of concerned State to make rules pertaining to appointments of persons other than district judges. Under Article 235, the High Court has control over all the courts subordinate to it.

The Law Commission of India in its 14^th report in 1958 recommended for three years practice, but no rule was made to that end. Then, the Supreme Court in All India Judges' Assn. (II) v. Union of India, directed that three years practice as a lawyer is one of the qualifications for appointment as a judicial officer at the lowest rung. Later, based on the report of the Justice Shetty Commission, the said rule was relaxed in All India Judges' Assn. (III) v. Union of India.

The criticism of the All India Judges Association (IV) judgment that the three-year experience requirement will not attract fresh graduates from National Law Universities (NLUs) lacks merit, because even when there was no such requirement, most NLU graduates preferred jobs in the corporate sector. Secondly and most importantly, judgeship is not a career-oriented job where one has to look towards individual growth. It is a service-oriented job, because each judgment decides the fate of the suffering litigant. Though review, appeal and revision safeguards are provided, these cannot replace the damage caused by the original judgment which is decided based on the evidence recorded before the Civil Judge (Junior Division). At best, these safeguards can mitigate the effect of original judgment, provided the litigant can afford the costs of approaching the superior court.

Also, it is next to impossible for a fresh candidate without any experience to tackle a senior advocate (whether designated or not) who carries with him years of practical experience.

In our system, no one case is similar to the other because each case contains peculiar facts. Many a time, clients come with such weak and complicated facts that the advocate who represents the case of his client ensures that the plaint or written statement is drafted in a clever way. Now, for one to know how the things work in the system, he has to be part of that system. No coaching institute can teach the art of drafting the plaint or written statement. Cross-examination is an art which can be learnt only by practice. This experience will give the civil judge a clear picture to know the actual truth in the case while authoring a judgment.

The criticism that brighter candidates would not join judicial service if the three-year mandatory rule is prescribed, lacks first-hand information. Experience has shown that the kind of orders Civil Judges (Junior Division) are passing are such that the High Court has to correct them in revision. In addition to that, these Civil Judges (Junior Division) are regularly being sent for training, which becomes additional financial burden on the system.

Also, with the burgeoning number of law graduates coming out each year and getting enrolled as advocates, and hardly 50-100 vacancies being released for a Civil Judge (Junior Division) post in a given year, there won’t be any dearth in the bright candidates applying and getting selected even after the waiting period of three years.

It is pertinent to note that after graduation, aspirants are taking coaching from the institutes which charge in lakhs, and are spending minimum of 1-2 years there just to gain theoretical knowledge. Instead of spending time and money on coaching centers, they could gain practical experience in courts.

In a day, a judge of a civil court has to deal with regular matters, conduct chief-examination and cross-examination, deal with urgent petitions moved on that day (known as out-of-order matters in Telangana), deal with several interlocutory applications and pass orders or judgments and decrees. If, in an out-of-order petition, urgent relief is not granted despite there being merit or is granted just randomly without there being any merit, it causes huge loss and injury to the litigant till the time it is rectified. This can be known by the aspirant only if he has practiced law. There is theoretical knowledge on out-of-order petitions, but it cannot teach a candidate how to deal with them in practice. No doubt there are bright candidates who learn theory, but that candidate will become perfect only when he practices the law because he has to know the other side of the system - the Bar - in order to become effective on the Bench.

Though it is a sad reality that many seniors do not pay young lawyers and in the initial years it is very difficult to get independent cases, the scope for learning through practice (with or without money) is always there. These initial days of struggle will make the candidate more determined to serve the cause of justice and understand the plight of future young lawyers so that he can accommodate them with geniality. Also, it is a wrong perception that a newly-enrolled advocate does not earn at all. There is no dearth of cases in the legal profession. With population increase and more urbanisation, land litigation is increasing rapidly. There are so many miscellaneous matters like property-release petitions, bail petitions, etc., which a newly-enrolled advocate can also deal with. It is just that one has to know the art of getting such small cases.

In a country like India, where parents prefer to marry off their female children immediately after education, this mandatory practice period of three years may be a drawback to women candidates. But most women in urban areas are getting married later due to focus on their career. Due to continuous rising inflation in India, unless both husband and wife earn, it is difficult to meet daily expenditures. Also with the majority of the population becoming progressive and broad-minded, this mandatory practice may just be a speed-breaker for a woman, and not the end of her legal career.

What the critics have missed is the other part of the judgment which holds that the quota of reservation for Limited Departmental Competitive Examination (LDCE) for promotion from cadres of Civil Judge (Senior Division) to Higher Judicial Service (District Judge) is increased to 25% from earlier 10%, and that total service as Senior and Junior Division Civil Judge is set at a minimum of 7 years. LDCE is a concept where meritorious candidates can be promoted as district judges based on the quality of judgments, disposal rates, performance in interview, etc, instead of seniority-cum-merit based regular promotion. Thus, the increase in LDCE quota compensates the earlier loss caused by three years' mandatory practice and also gives recognition to the merit of the candidate, instead of only seniority.

If it is brought to the Supreme Court in future that this mandatory three-year rule is not working properly, the Court may again relax the condition as it has in the past. For now, the reform is welcomed.

Baglekar Akash Kumar is an Advocate practicing before the High Court of Telangana.