Orissa High Court
Ipsita Mohanty vs State Of Orissa & Others ... Opposite ... on 6 November, 2023
Bench: D.Dash, G.Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.34439 of 2023
Ipsita Mohanty ... Petitioner
Ms. B.K.Pattanaik,Adv
-versus-
State of Orissa & others ... Opposite Parties
. Mr.S.N.Das, ASC
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE G.SATAPATHY
ORDER
06.11.2023 Order No. I.A. No. 17333 of 2023
03. 1. This matter is taken up through hybrid arrangement (virtual/physical) mode.
2. Heard.
3. Keeping in view the submissions of the learned counsel for the petitioner and on going through the averments taken in the Interim Application, we allowed the prayer as advanced in the said application and recall the order, which has been passed on 30.10.2023.
4. The I.A. is accordingly disposed of.
(D. Dash)
Judge
(G. Satapathy)
Judge
Order No. W.P.(C) No. 34439 of 2023
04. 1. The issue involved in this writ petition is to the challenge of
the petitioner rejecting her candidature to appear in the written Page 1 of 4 // 2 // examination for the post in the cadre of District Judge directly from the Bar, 2023.
2. The short ground on which the petitioner challenges the action of opposite party in not taking into consideration her past practice experience as an Advocate for computing the period of continuous practice for seven years to make her eligible to appear in the written examination for the post in the cadre of District Judge directly from the Bar, 2023.
3. Heard Ms. B.K.Pattanaik, learned counsel for the petitioner and Mr.S.N.Das, learned ASC.
4. Admittedly, the petitioner was a Judicial Officer and she had resigned from service and her resignation was accepted on 02.01.2023 and thereafter, she joined in the Bar on 13.03.2023 as a practicing Advocate, but she claims her experience from 30.01.2008 to 15.02.2015 in computing the seven years practice as an Advocate to become eligible to appear in the written examination for the post in the cadre of District Judge from the Bar, 2023.
5. The appointment of District Judges is governed by Article- 233 of Chapter-VI (Sub-Ordinate Courts) of the Constitution of India, wherein the eligibility criteria has been provided in Clause-2 of Article-233 in the following words:
"A person not already in the service of Union or the State shall only be eligible to be appointed a District Judge if he has been for not less than seven years as advocate or a pleader and is recommended by the High Court for appointment".
When the seven years practice has to be reckoned has been answered by a three Judge Bench of the Apex Court in Deepak Aggarwal v. Keshav Kaushik and others; (2013) 5 SCC 277 wherein it has been held as follows:
Page 2 of 4// 3 // "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 sometime 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".
6. Moreover, in Dheeraj Mor v. High Court of Delhi; (2020) 7 SCC 401, a constitutional Bench of five judges of Apex Court while answering reference has been pleased to held as under:
"14.Article 233(2) provides that if an advocate or a pleader has to be appointed, he must have completed 7 years of practice. It is coupled with the condition in the opening part that the person should not be in service of the Union or State, which is the judicial service of the State. The person in judicial service is not eligible for being appointed as against the quota reserved for advocates. Once he has joined the stream of service, he ceases to be an advocate. The requirement of 7 years of minimum experience has to be considered as the practising advocate as on the cutoff date, the phrase used is a continuous state of affair from the past. The context 'has been in practice' in which it has been used, it is apparent that the provisions refer to a person who has been an advocate or pleader not only on the cutoff date but continues to be so at the time of appointment".
7. In concluding the aforesaid decision in Dheeraj Mor(supra), it has been held by the Apex Court that under Article 233, a judicial officer, regardless of her or his previous experience as an Advocate with seven years' practice cannot apply, and compete for appointment to any vacancy in the post of District Judge; her or his chance to occupy that post would be through Page 3 of 4 // 4 // promotion, in accordance with Rules framed under Article 234 and proviso to Article 309 of the Constitution of India.
8. In this case indisputably, the advertisement issued by the High Court of Orissa clearly spell out one of the eligibility criterias for the candidature as "be having at least seven years practice as an advocate as on 1st April, 2023". Adhering to the aforesaid eligibility condition, when the case of the Petitioner is considered, she is found not eligible for want of seven years continuous practice as an advocate as on 1st April, 2023.
9. In view of the discussion made hereinabove and applying the law laid down by the Apex Court Deepak Aggarwal and Dheeraj Mor (supra) to the case at hand and the Petitioner having not found experience of continuous practice as an advocate for seven years, it can safely be said that the Petitioner is not eligible to appear in the examination. Hence, the decision of the OP in not considering the petitioner to be eligible to the post in the cadre of District Judge is perfectly justified and does not need any interference by this Court.
10. In the result, the writ petition being devoid of merit, stands dismissed, but no order as to costs.
(D. Dash) Judge (G. Satapathy) Judge Kishore/Subhasmita Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 07-Nov-2023 17:50:26 Page 4 of 4