Patna High Court - Orders
Vikram Anand And Ors vs Honble High Court Of Judicature At Patna ... on 18 February, 2019
Bench: Chief Justice, Anjana Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2539 of 2019
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Vikram Anand and Ors.
... ... Petitioner/s
Versus
Hon'ble High Court of Judicature At Patna through its Registrar General and
Anr.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Umesh Prasad Singh, Sr. Advocate
Mr. Rakesh Kumar, Advocate
Mr. Neeraj Kumar, Advocate
Miss Prity Jaiswal, Advocate
For the State : Mr. Saroj Kumar Sharma, A.C. to AAG-3
For the High Court : Mr. Piyush Lall, Advocate
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE JUSTICE SMT. ANJANA MISHRA
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
3 18-02-2019Heard Shri Umesh Prasad Singh, learned Senior Counsel for the petitioners and Shri Piyush Lall, learned counsel for the High Court.
All the seven petitioners are already serving as Judicial Officers, out of whom three are in the State of Bihar and four are in the State of Jharkhand.
Their contention is that they are entitled to apply for appearing in the examinations that are to be conducted by the respondents against advertisement dated 19th January, 2019, the last date whereof is tomorrow i.e. 19th of February, 2019. It is in this background that they have come up praying that in view of Patna High Court CWJC No.2539 of 2019(3) dt.18-02-2019 2/9 the issue engaging a Larger Bench as referred by the Supreme Court in the case of Dheeraj Mor Vs. Hon'ble High Court of Delhi, reported in (2018) 4 SCC 619, the petitioners should be provisionally allowed to fill up their application forms and the respondent should be directed to accept the same subject to the final outcome of the decision by the Apex Court in the case of Dheeraj Mor (supra).
Shri Singh urges that the law, as it stands today in view of various judgments that have been referred to in the case of Dheeraj Mor (supra), the petitioners are not fundamentally ineligible to apply. At this stage, it is only the submission of the application forms and not the issue of appointment so as to consider the applicants to be ineligible for appointment in terms of Article 233(2) of the Constitution of India.
It is further submitted that the petitioners being in the Judicial Service itself and discharging their duties which concerns the legal profession, they cannot be discriminated or otherwise treated differently for the purpose of eligibility to apply, inasmuch as, they even if have ceased to practice as a legal practitioner, their names have not been struck off from the Rolls of Advocate where they stand enrolled when they had initially sought enrollment after having passed their L.L.B. Patna High Court CWJC No.2539 of 2019(3) dt.18-02-2019 3/9 examinations. The contention, therefore, is that in spite of having joined the Subordinate Judicial Service they have not incurred any such ineligibility so as to deny them the opportunity to apply for the said post. The question of disqualification at this stage does not arise, inasmuch as, no appointment is going to take place at present and, therefore, the petitioners in the light of the referring order in the case of Dheeraj Mor (supra) can legitimately apply and appear in the examinations.
In the writ petition, the petitioners have challenged the validity of Clause (3) of Appendix- 'C' to the Bihar Superior Judicial Service Rules, 1951 contending that the said clause is ultra vires, inasmuch as, the same amounts to violating Article 16 of the Constitution of India and is not in conformity with the law laid down by the Apex Court as interpreted by it keeping in view the provisions of Article 233 (2) of the Constitution of India. It is their prayer that the minimum seven years of practice on the last day of receipt of application and the declaration of appearance in at least 24 cases per year in the last three years cannot be applied in the case of the petitioners as it militates against the very eligibility of the petitioners who are otherwise entitled to appear in the examination. The ground for challenge, Patna High Court CWJC No.2539 of 2019(3) dt.18-02-2019 4/9 therefore, in our opinion appears to be based on the observations made in the referring order in the case of Dheeraj Mor (supra) which is still pending consideration before the Apex Court.
Learned counsel for the petitioners has also invited the attention of the Court to the interim orders passed by the Apex Court as already recited in Paragraph 15 of the judgment in the case of Dheeraj Mor (supra) and also indicated in the record of proceedings in the case of Sukhda Pritam and another Vs. Hon'ble High Court of Rajasthan and another, reported in (2018) 4 SCC 627. It is, therefore, vehemently urged that the Court should exercise its extraordinary jurisdiction and grant an interim relief allowing the petitioners to provisionally apply which shall be subject to further outcome of the litigation.
The said prayer has been opposed by the learned counsel for the High Court Shri Piyush Lall, who submits that so long as the rules are not struck down and remain on the statute book, any such relief by way of an interim order cannot be granted, inasmuch as, no relief at the interim stage should be granted, which can only be considered at the time of final disposal of the matter. He further submits that otherwise also the ineligibility is not only a Constitutional ineligibility but also a statutory ineligibility as per the 1951 Rules referred to above Patna High Court CWJC No.2539 of 2019(3) dt.18-02-2019 5/9 and in the absence of any law to the contrary it will not be appropriate to allow the petitioners to seek permission to apply for appearing in the forthcoming examination, the schedule whereof has not yet been declared.
We have considered the submissions at the Bar and perused the Rules and we find that prima facie Article 233(2) begins with the recital that a person not already in the service of Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment. The sine qua non is that a person has to be an Advocate of seven years standing or a Pleader. The definition of the word 'Advocate' occurs in the Advocates Act, 1961 in Section 2(a) and the word 'legal practitioner' under Section 2(i) thereof means an Advocate or a Pleader or a Vakil, Mukhtar or Revenue Agent.
Looking to the definition clause aforesaid, we find that it is only an Advocate or a Pleader who has been extended the benefit of being eligible with seven years of practice for being appointed as a District Judge as per Article 233(2) of the Constitution of India. It is obvious from a reading of the said Article that a person who is not practicing, who is not an Patna High Court CWJC No.2539 of 2019(3) dt.18-02-2019 6/9 Advocate or a Pleader of not less than seven years of practice cannot by virtue of his profession otherwise enter into the stream and be an applicant for being appointed as a District Judge. The prohibition after being enrolled as an Advocate appears to be in terms of Rule 49 of the Bar Council of India Rules, which provides as follows:-
"49. An Advocate shall not be a full-time salaried employee of any person, Government, firm, corporation or concern, so long as he continues to practise, and shall, on taking up any employment, intimate the fact to the Bar Council on whose roll his name appears, and shall thereupon cease to practise as an Advocate so long as he continues in such employment."
A perusal of the aforesaid Rule would leave no room for doubt that a person on his having become a full-time salaried employee shall cease to practice as an Advocate so long as he continues in such employment. The person who seeks employment as in the present case as a Judicial Officer, therefore, in spite of being enrolled as an Advocate prior to his employment ceases to act as an Advocate. In this context, Clause 3 of Appendix- 'C' of the 1951 Rules, which is under challenge before us, needs to be noted, which is extracted Patna High Court CWJC No.2539 of 2019(3) dt.18-02-2019 7/9 hereinunder:-
"3. Any applicant who has not completed 7 years practice on the last date of receipt of application as specified in the advertisement and who do not give declaration of appearance in at least 24 cases per year in the last three years, shall not be eligible for consideration for such appointment."
It is this condition of eligibility which the petitioners alleged to be offending their rights in applying for appearing in the said examinations. Their contention, therefore, is that if the Constitutional provision under Article 233(2) can be construed to include the vocations of the petitioners as Judicial Officers to be akin to that of a practising lawyer, then in that event a harmonious construction can be given to and the rules contained in Appendix- 'C' can be read down to that effect. The same would, therefore, ultimately result in allowing the applicants to apply and appear in the examinations.
At this stage, we are unable to accept this submission prima facie, inasmuch as, so long as there is no amendment in Article 233(2) of the Constitution of India redefining the words 'not less than seven years', 'Advocate' or 'Pleader' or otherwise reading it as inclusive of including persons already employed as Patna High Court CWJC No.2539 of 2019(3) dt.18-02-2019 8/9 Subordinate Judicial Officers, it may not be possible to extend the final relief as prayed for. There does not appear to be any rationale so as to strike down the rule of eligibility contained in Appendix- 'C' quoted hereinabove as long as the Constitutional provision stands. It does not prima facie stand to reason that if a person cannot be appointed by virtue of the aforesaid eligibility criteria then why should he be allowed to apply when he cannot be appointed. Apart from this there are Advocates who are standing in the queue in larger numbers and available who fulfil the eligibility criteria. Officers who are already in service would be therefore be adding more to the competition and thereby encroaching upon the opportunity available to Advocates who are still unemployed. Thus, we do not find any prima facie case in favour of the petitioners to grant an interim relief.
However, the fact remains that this issue is already engaging the attention of the Apex Court in the case of Dheeraj Mor (supra) where the said matters are still stated to be pending.
Accordingly, we are not inclined to grant any interim relief to the petitioners leaving it open to them to approach the Apex Court for any such relief as the matter is still engaging the attention of the Apex Court.
Patna High Court CWJC No.2539 of 2019(3) dt.18-02-2019 9/9 The matter shall be listed after any orders are passed by the Apex Court.
(Amreshwar Pratap Sahi, CJ) (Anjana Mishra, J) P.K.P./-Jagdish U