Allahabad High Court
Kumar Mitakshar vs State Of U.P. And 2 Others on 20 April, 2023
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 29 Case :- WRIT - A No. - 33829 of 2015 Petitioner :- Kumar Mitakshar Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shailendra,Pratik Chandra,Rupendra Kumar Mishra,Sr. Advocate Counsel for Respondent :- C.S.C.,Ashish Mishra,Gautam,Manish Goyal Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Vikas Budhwar,J.
Heard Sri Pratik Chandra learned senior counsel assisted by Sri Rupendra Kumar Mishra learned counsel for the petitioner and Sri Ashish Mishra learned counsel for the respondent High Court.
The petitioner herein seeks to challenge the decision of the respondent no.2 namely the High Court of Judicature at Allahabad to reject the candidature of the petitioner vide order dated 19.05.2015, on the ground that the petitioner herein has not completed 7 years of continuous legal practice immediately preceding the date of the application for direct recruitment of U.P. Higher Judicial Service, 2014.
The statement in the writ petition is that the petitioner herein had an experience of practising Advocate between 09.01.2005 till 19.03.2006 of 1 year 2 months and 10 days, which is to be added in the practice period from 01.08.2007 to the last date of submission of the application i.e. 03.07.2014. The contention is that the total period of practice as an Advocate completed by the petitioner as on the date of submission of the application form comes to 8 years 1 month 13 days. The petitioner has fulfilled requisite eligibility criteria of being an Advocate of not less than 7 years of standing as on 01.01.2015, and falling within the age bracket of 35 years and below 45 years on 01.01.2015.
It is argued by the learned counsel for the appellant that the rejection of candidature of the petitioner based on the decision of the Apex Court in Deepak Agarwal vs Keshav Kaushik & Others reported in (2013) 5 SCC 277 and in Special Leave Petition no.17201-17212 of 2007-High Court of Judicature at Allahabad vs Sanjay Agarwal & Anr, is based on the misreading of the aforesaid decisions.
It is argued that the Rule 5(c) of the U.P. Higher Judicial Service Rules, 1975 which prescribes the source of recruitment to Higher Judicial Services states that the direct recruitment may be made from the Advocates of not less than 7 years standing on the first day of January next following the year in which the notice inviting the applications is published. This rule has not been amended till the advertisement in question was published in view of the language of Rule 5(c) of the Rules, 1975. It is, thus, not open for respondent no.2 to take any exception to the candidature of the petitioner, in as much as, the petitioner was an Advocate practising on the last date of submission of the application, having more than 7 years of standing as on 01.01.2015.
The contention is that the decision of the Apex Court in case of Deepak Agarwal (supra) has to be read in the facts of that case wherein the question was whether the appellants therein working as Assistant District Attorney/ Public Prosecutor/Deputy Advocate General can be said to be practising Advocates and services rendered by them while working in the said capacity can be considered as the period practising law. The contention, thus, is that the observation made in para-'102' of the decision of the Apex Court in Deepak Agarwal (supra) while reading Article 233(2) of the Constitution of India cannot be read against the petitioner to hold that the petitioner has not rendered 7 years of practice as an Advocate and did not possess eligibility qualification to participate in the selection in question.
Sri Ashish Mishra learned counsel for the respondent High Court, however, relies upon the paragraph-'102' of the decision of the Apex Court in Deepak Agarwal (supra) and further paragraphs-'58' and '60(iv)' in the decision of the Apex Court in Dheeraj Mor vs Hon'ble High Court of Delhi reported in (2020) SCC online SC 213 to submit that the issue pertaining to computation of 7 years of practice experience as per Rules 5(c) of Rules, 1975 read with Article 233(2) of the Constitution has been settled with the decision of the Apex Court in Deepak Agarwal (supra) and further consideration made in Dheeraj Mor (supra).
Taking note of the above submissions, we may further go through Article 233(2) of the Constitution which provides the eligibility for appointment as the District Judge of a person who is not in service of the Union of the State. It provides that any such person would be eligible for appointment if he has been for not less than 7 years as an Advocate/pleader and is recommended by the High Court. The appointment by direct recruitment to the Higher Judicial Service is made by the High Court in the spirit of the constitutional provision under Article 233(2) of the Constitution in accordance with the service Rules' 1975.
The language of Article 233(2) of the Constitution has been read and interpreted by the Apex Court in the case of Deepak Agarwal (supra) in the following manner:-
"102. As regards construction of the expression, ?if he has been for not less than seven years an advocate? in Article 233(2) of the Constitution, we think Mr. Prashant Bhushan was right in his submission that this expression means seven years as an advocate immediately preceding the application and not seven years any time in the past. This is clear by use of ?has been?. The present perfect continuous tense is used for a position which began at some time in the past and is still continuing. Therefore, one of the essential requirements articulated by the above expression in Article 233(2) is that such person must with requisite period be continuing as an advocate on the date of application. "
In the case of Dheeraj (supra) it was further considered in paragraphs-'58', '60(iv)' as under:-
"58. In view of the aforesaid discussion, we are of the opinion that for direct recruitment as District Judge as against the quota fixed for the advocates/pleaders, incumbent has to be practising advocate and must be in practice as on the cutoff date and at the time of appointment he must not be in judicial service or other services of the Union or State. For constituting experience of 7 years of practice as advocate, experience obtained in judicial service cannot be equated/combined and advocate/pleader should be in practice in the immediate past for 7 years and must be in practice while applying on the cutoff date fixed under the rules and should be in practice as an advocate on the date of appointment. The purpose is recruitment from bar of a practising advocate having minimum 7 years? experience.
60. We answer the reference as under :
(iv) 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 at the time of appointment as District Judge. Members of judicial service having 7 years? experience of practice before they have joined the service or having combined experience of 7 years as lawyer and member of judiciary, are not eligible to apply for direct recruitment as a District Judge."
It is, thus, held in Deepak Agarwal (supra) and considered in Dheeraj Mor (supra) that 7 years standing as an Advocate means the period practising law as an Advocate for 7 years immediately preceding the application and not 7 years any time in the past. The applicant who is an Advocate/pleader should be in practice in the immediate past for 7 years and must be in practice, while applying, on the cut-off fixed under the rules and should be in practice as an Advocate on the date of appointment. The purpose is to recruit the members of the bar, i.e practising Advocates having minimum 7 years practice. The continuity accorded to the period of 7 years for computing eligibility criteria of experience as provided in Rule 5(c) of the U.P. Higher Judicial Service Rules 1975, thus, is determined with the decision of the Apex Court.
The contention of the learned senior counsel for the petitioner that the period of 1 year 2 months and 10 days is to be counted in the period practising law by the petitioner as on the date of application, the cut off date under the Rules, cannot be accepted as the requirement is that the total period of 7 years experience must be in continuity immediately preceding the last date of the submission of the application form.
The result is that as on 03.07.2014, i.e. the last date of submission of the application form, the petitioner herein had gained experience of only 6 years 11 months and 3 days as practising Advocate. He, therefore, cannot be said to be eligible for appointment by direct recruitment to the Higher Judicial Services as per the eligibility criteria under the U.P. Higher Judicial Service Rules, 1975 read with Article 233(2) of the Constitution of India.
As regards the submission of the learned senior Advocate that the observation in Deepak Agarwal (supra) in para-'102' would not be attracted in case of the petitioner, inasmuch as, the issue herein is covered by the decision in Rameshwar Dayal vs State of Punjab reported in AIR 1961 SC 816, suffice it to note that in Dheeraj Mor (supra), both the decisions of the Apex Court in Deepak Agarwal (supra) and Rameshwar Dayal (supra) had been considered to observe in para-'58' and '60(iv)' noted hereinabove.
The submission of the learned counsel for the appellant, therefore, cannot be accepted. Even otherwise the Apex Court in case of Deepak Agarwal (supra) has made observation in paragraph '102' that the words "has been" used in Article 233(2) of the Constitution being in present perfect continuous tense, continuous practice of 7 years or experience of continuous 7 years immediately preceding the cutoff date as per the service rules, is necessary.
The words "has been" used in Article 233(2) of the Constitution gives continuity to the period and the requirement, thus, is that the candidate for being treated as eligible must possess 7 years continuous period practising law immediately preceding the last date of submission of the application form i.e. on the cut off date as per the recruitment rules.
For the above discussion, no infirmity can be found in the decision of the respondent High Court.
The writ petition is, accordingly, dismissed.
Order Date :- 20.4.2023 Harshita