Allahabad High Court
Shashi Kant Tiwari vs High Court Of Judicature At Allahabad ... on 23 April, 2024
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Neutral Citation No. - 2024:AHC:71093-DB RESERVED ON 28.2.2024 DELIVERED ON 23.4.2024 In Chamber Case :- WRIT - A No. - 12307 of 2019 Petitioner :- Shashi Kant Tiwari Respondent :- High Court Of Judicature At Allahabad And 2 Others Counsel for Petitioner :- Sushil Kumar Shukla,Shashi Kant Shukla Counsel for Respondent :- Ashish Mishra Hon'ble Vivek Kumar Birla,J.
Hon'ble Donadi Ramesh,J.
(Delivered by Vivek Kumar Birla,J.)
1. Heard Sri Shashi Kant Shukla along with Sri Sushil Kumar Shukla, learned counsel for the petitioner and Sri Ashish Mishra, learned counsel appearing for the respondents-High Court.
2. Present petition has been filed with the following prayers:-
"I. Issue a writ order of direction in the nature of certiorari to quash the impugned order dated 08.05.2019 vide Memo No. 232/S & A Cell/2-019 passed by respondent no. 2 Registrar (J) Selection and Appointment/Seniority High Court of Judicature at Allahabad.
II. Issue a writ order of direction in the nature of mandamus commanding and directing the respondents to declare the result of the petitioner as finally selected candidate in Uttar Pradesh Higher Judicial Service Examination 2016 bearing roll No. 6242.
III. Issue a writ order of direction in the nature of mandamus commanding the respondents to issue the appointment letter to the petitioner as finally selected candidate in Uttar Pradesh Higher Judicial Service Examination 2016 bearing roll No. 6242."
3. As stated, the case of the petitioner is that the petitioner is a practising lawyer and was registered as an Advocate on 16.11.1998 in Bar Council of Uttar Pradesh. He was appointed as Law Officer on 15.1.2009 in a company with the name and style of Alliance Builders and Contractors Limited, Bareilly (hereinafter referred as the Company). It is alleged that he was representing on behalf of the Company in different courts of law, a copy of the appointment letter dated 15.1.2009 has been annexed as Annexure-3 to the writ petition. It is the case of the petitioner that he was simultaneously also appearing for private clients and had filed several Vakalatnamas on behalf of other litigants as well in various courts of law during the year 2009-10. He appeared in U.P. Higher Judicial Services Examination, 2009 and in the Form the fact regarding his legal services to the abovenoted Company has been mentioned. He was qualified the prelims as well as the written examination and was called for interview but he was not permitted to participate in the interview on the ground that he is a salary paid employee. As he intended to appear in Higher Judicial Services Examination, therefore, he moved an application dated 1.1.2010 before the Managing Director of the Company tendering his resignation, copy whereof has been annexed as Annexure-14 to the writ petition. The resignation of the petitioner was accepted by the Company and relieving order was passed on 1.2.2010. Subsequently, the petitioner appeared in U.P. Higher Judicial Services Examination, 2012 and was again successful in prelims as well as in the written examination and was called for interview, however, as he has obtained only 21 marks out of 100 marks, therefore, his name did not figure in the select list. He again appeared in U.P. Higher Judicial Services Examination, 2014 but could not qualify the written examination. The petitioner again applied in April 2016 for U.P. Higher Judicial Services Examination, 2016 against 72 vacancies so advertised. He filled up the Form on 6.6.2016 (Annexure-19 to the writ petition), however, it is claimed that due to inadvertent mistake some facts were wrongly mentioned by the petitioner in the form and the said facts were clarified by filing affidavit dated 12.6.2016 (Annexure-20 to the writ petition). The petitioner again cleared prelims as well as written examination in the aforesaid examination and was called for interview on 22.4.2017, the final result whereof was declared on 18.8.2017, however, name of the petitioner did not figure in the final select list. It is asserted that when marks of the candidate were uploaded on 19.4.2019 the petitioner came to know that he has obtained total 471 marks while lastly selected candidate of the general category, namely, Anchal Lavania has obtained only 455 marks, then the petitioner was surprised that he had obtained 16 marks more than last final selected candidate of the general category, why his name has not been placed in the final selected list, therefore, he moved a representation dated 3.5.2019, the same was rejected by the impugned order dated 8.5.2019 (Annexure-25 to the writ petition).
4. The rejection order is being challenged by learned counsel for the petitioner mainly on the ground that since 16.11.1998, the date on which he was registered as an Advocate with the Bar Council of Uttar Pradesh, the petitioner was a regular practitioner as an Advocate in various courts of law specifically in Civil Court, Bareilly. It is submitted that although the petitioner was engaged for the Company for one year, however, his nature of job was to represent the cases of the company as an Advocate before various courts of law, therefore, he had always been working as an Advocate and that the nature of work performed by the petitioner for the Company was purely advocacy. It is submitted that the petitioner appeared in U.P. Higher Judicial Services Examinations in 2009, 2012, 2014 and 2016 and always Bar Association concerned had issued experience certificate countersigned by the District Judge to the effect that he was a regular practitioner as an Advocate, therefore, the ground of rejection that he was engaged in full time employment as Law Officer of the Company and thus, did not fulfill the necessary eligibility criteria of having seven year continuous practice as on 18.6.2016 i.e. the last date of filling up the Form, is not sustainable in the eyes of law.
5. In support of his arguments, learned counsel for the petitioner has heavily placed reliance on the judgment of Hon'ble Apex Court in the case of Deepak Aggarwal vs. Keshav Kaushik and others (2013) 5 SCC 277.
6. Learned counsel for the respondent High Court has vehemently opposed the petition. A detailed counter affidavit has been filed by the respondents-High Court disputing the correctness of the arguments of learned counsel for the petitioner specifically highlighting the contents of the appointment letter, resignation letter, the Form filled up by the petitioner and the Affidavit filed by the petitioner. It would be appropriate to extract relevant paragraphs of the Counter Affidavit, which are as under:-
"4. That as per the admitted case of the petitioner, the petitioner was under full time employment of Alliance Builder and Contractors Limited from 15.01.2009. The appointment letter which is annexed to the writ petition (as Annexure 3) contains the detailed terms and conditions of employment, one of the conditions of employment contained at Clause 10 of the said appointment letter reads as follows:
10. This appointment is on a full-time basis and you shall devote your full-time to the duties assigned by the company and will not engage yourself for any other person, firm or company in any capacity during your employment with us.
5. That said appointment letter and its terms and conditions were duly accepted by the petitioner vide his endorsement dated 15/01/2009. It is pertinent to mention here that the petitioner was fully aware of the scope of his employment and the fact that in continuance of his employment the petitioner cannot be considered to be an Advocate with continuing practice for the purpose of his candidature in the U.P. Direct Higher Judicial Services exams which are conducted by the High Court, as such the petitioner himself in his resignation letter dated 01/01/2010 (Annexure 14) specifically stated as follows:-
"मैं शशिकान्त तिवारी आपकी प्रतिष्ठित कंपनी एलायंस बिल्डर्स एंड कॉन्ट्रैक्टर्स लि. में दिनांक 15 जनवरी 2009 से लॉ आफिसर पद पर पूर्णकालिक नियोजन में नियुक्त हूँ।
कंपनी द्वारा दिए गए नियुक्ति पत्र में वर्णित शर्त के अनुसार चूँकि मेरा नियोजन पूर्णकालिक था अतः इस कारण मैं साक्षात्कार देने से वंचित रह गया।
चूँकि मुझे भविष्य में पुनः उच्चतर न्यायिक सेवाओं में सम्मिलित होना है जिसके कारण मैं कंपनी में लॉ ऑफिसर पद के पूर्णकालिक नियोजन में कार्य कर पाने में असर्थ हूँ।
अतः श्रीमान जी से अनुरोध है कि उपरोक्त परस्थिति को देखते हूए मेरा त्यागपत्र स्वीकार कर मुझे मेरे लॉ ऑफिसर पद के पूर्णकालिक नियोजन से कार्य मुक्त करने की कृपा करें।"
As such it is submitted that even as per the understanding of the petitioner, the petitioner's employment was full time and due to his employment he was not eligible for candidature in the Direct HJS exams which were being conducted by the High Court. The petitioner's resignation was accepted on 01/02/2010 on which date he was released from service.
6. That it is further submitted that the present writ petition relates to the cancellation of candidature of the petitioner with respect to the advertisement of the year 2016; as per the admitted case of the petitioner, the petitioner has after filling of the online form, submitted an affidavit with respect to certain inadvertent error in filling the form. The contents of the affidavit itself reveal that the petitioner's stand was that during his full time employment the petitioner was ineligible for appearing in the Direct Higher Judicial Services exam. It is further submitted that the petitioner has not provided any evidence or even stated in his affidavit that he was permitted to practice or was actually practising during the period in which he was under employment. For convenience the relevant part of the affidavit of the petitioner dated 12.06.2016 (Annexure 20) to the writ petition, is reproduced herein under:
"4. यह कि शपथकर्ता का वर्तमान समय में कोई नियोजन नहीं है।
5. यह कि पूर्व में शपथकर्ता ने एक प्राइवेट कंपनी- एलाइंस बिल्डर्स एंड कॉन्ट्रैक्टर्स लिमिटेड स्टेडियम रोड बरैली में लॉ ऑफिसर के रूप में दिनांक 15.01.2009 से 01.02.2010 तक कार्य किया था तथा भविष्य में HJS परीक्षाओं में सम्मिलित होने के कारण त्यागपत्र दे दिया था। शपथकर्ता का नियोजन प्राइवेट था तथा उसे रूपये 9000/- मासिक वेतन मिलता था।"
7. That it is further submitted that no averment or evidence was provided by the petitioner that the petitioner during his course of employment was employed to act and plead in the Court of law as an advocate; no averment was made or evidence was provided by the petitioner that he continued to practice law even after his appointment. On the other hand it was categorically stated in the affidavit that the petitioner was in full term private employment and for the purposes of him becoming eligible for appearing in Direct HJS examinations in the future, he has tendered his resignation on 01.02.2010."
(emphasis supplied)
7. Paragraph 8 of the Counter Affidavit containing the resolution passed by the Selection and Appointment Committee, while rejecting the candidature of the petitioner in its meeting dated 17.5.2017, is also quoted as under:-
"8. That the Hon'ble Selection and Appointment Committee while rejecting his candidature, in its meeting held on 17.05.2017 has resolved as under:
3. Shashi Kant Tiwari (Roll No. 6242):
The candidate vide affidavit dated 13/06/2016 had submitted that he was in employment as Law Officer in a private firm, Alliance Builders and Contractors Ltd. Stadium Road, Bareilly from 15/01/2009 to 01/02/2010. However, he had also submitted an application dated 13/06/2016 in which he had submitted that he had inadvertently filled NO in column number 15 of the application, form which seeks information regarding employment.
Further, the candidate had enclosed an appointment letter issued by the firm Alliance Builders and Contractors Ltd. Stadium Road, Bareilly dated 15/01/2009 offering him appointment as Law Officer at their corporate office disclosing therein that his remuneration will be ₹ 9000 per month.
At point number 10 of the said appointment letter, it is specified that:
"This appointment is on a full-time basis and you shall devote your full-time to the duties assigned by the company and will not engage yourself for any other person, firm or company in any capacity during your employment with us."
The candidate had also submitted relieving order dated 01.02.2010 accepting his resignation from the service and thereby relieving him from duties with effect from 01.02.2010. Sri. Tiwari had disclosed the same facts again through his affidavit dated 03/04/2017. Nothing was found on record to show that he was otherwise practicing as a lawyer in this period, though the candidate had submitted an experierice certificate issued by the District Judge, Bareilly showing his practice as on 18/06/2016 as 17 years 7 months and 2 days [since 16.11.1998].
A perusal of the affidavit submitted by Sri. Shashi Kant Tiwari, Roll No. 6242 with regard to his employment revealed that he was in service during the period from 15/01/2009 to 01/02/2010, which caused discontinuity in his practice. As per the instructions issued for the candidates, only APO/APP were permitted to fill up the application form pursuant to the order passed by the Apex Court in Deepak Agarwal Vs Keshav Kaushik & Others (2013) 5 SCC 277 and in Special Leave Petition No. 17201-17212 of 2007 High Court of Judicature At Allahabad Vs Sanjay Agarwal and Anr.
The last date of submission of online application form was 18/06/2016, therefore the length of continuous practice of Shri Shashi Kant Tiwari on 18/06/2016 [from 01/02/2010] was found to be 6 years 4 months and 17 days and thus, he did not fulfill the necessary eligibility criteria of having 7 years continuous practice as on 18.06.2016.
Therefore in view of the above deliberation, the Committee resolved to treat him ineligible for direct recruitment of U.P.H.J.S.-2016 rejected the provisional candidature of Sri. Shashi Kant Tiwari, Roll No. 6242.
The aforesaid resolution of the Hon'ble Committee was approved by the Hon'ble Full Court and thereafter, the final result of U.P. Higher Judicial Service Recruitment, 2016 was declared on 18.06.2017."
(emphasis supplied)
8. It is next submitted that, therefore, Deepak Aggarwal (supra) is of no help to the petitioner.
9. Reliance has been placed by learned counsel for the respondents to a recent decision of Hon'ble Apex Court in the case of Dheeraj Mor vs. High Court of Delhi (2020) 7 SCC 401. Reliance has also been placed to a judgment of Division Bench of this Court dated 20.4.2023 passed in Writ A No. 33829 of 2015 (Kumar Mitakshar vs. State of U.P. and others), wherein the decision of Hon'ble Apex Court passed in Deepak Aggarwal (supra) as well as Dheeraj Mor (supra) has extensively been considered and claim of the similarly placed candidate was rejected.
10. We have considered the rival submissions and have perused the record.
11. Before proceeding further it would be appropriate to take note of relevant provisions of Constitution of India, definition of 'Advocate' as defined in Advocates Act, 1961, relevant rules of Bar Council of India Rules and U.P. Higher Judicial Service Rules, 1975, which are quoted as under:-
"Constitution of India "233(2)- A person not already in the service of the 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 Advocates Act, 1961 "2. Definitions - (1) In this Act, unless the context otherwise requires-
(a) "advocate" means an advocate entered in any roll under the provisions of this Act;
49- General power of the Bar Council of India to make rules- (1) The Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe-
...
(c) the standards of professional conduct and etiquette to be observed by advocates;
......."
The Bar Council of India Rules "43. An advocate who has been convicted of an offence mentioned under section 24A of the Advocates Act or has been declared insolvent or has taken full time service or part time service or engages in business or any avocation inconsistent with his practising as an advocate or has incurred any disqualification mentioned in the Advocates Act or the rules made thereunder, shall send a declaration to that effect to the respective State Bar Council in which the advocate is enrolled, within ninety days from the date of such disqualification. If the advocate does not file the said declaration or fails to show sufficient cause for not filing such declaration provided therefor, the Committee constituted by the State Bar Council under rule 42 may pass orders suspending the right of the advocate to practise.
Provided that it shall be open to the Committee to condone the delay on an application being made in this behalf.
Provided further that an advocate who had after the date of his enrolment and before the coming into force of this rule, become subject to any of the disqualifications mentioned in this rule, shall within a period of ninety days of the coming into force of this rule send declaration referred to in this rule to the respective Bar Council in which the Advocate is enrolled and on failure to do so by such advocate all the provisions of this rule would apply.
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 such employment, intimate the fact to the Bar Council on whose role his name appears and shall thereupon cease to practise as an advocate so long as he continues in such employment.
RESOLVED and further clarified that as Supreme Court has struck down the appearance by Law Officers in Court even on behalf of their employers the Judgment will operate in the case of all law officers. Even if they were allowed to appear on behalf of their employers all such Law Officers who are till now appearing on behalf of their employers shall not be allowed to appear as advocates. The State Bar Council should also ensure that those Law Officers who have been allowed to practise on behalf of their employers will cease to practise. It is made clear that those Law Officers who after joining services obtained enrolment by reason of the enabling provision cannot practise even on behalf their employers.
RESOLVED that the Bar Council of India is of the view that if the said officer is a whole time employee drawing regular salary, he will not be entitled to be enrolled as an advocate. If the terms of employment show that he is not in full time employment he can be enrolled."
The Uttar Pradesh Higher Judicial Service Rules, 1975 "5. Sources of Recruitment- The recruitment to the service shall be made-
(a) by promotion from amongst the Civil Judges (Senior Division) on the basis of Principle of merit-cum-seniority and passing a suitability test.
(b) by strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years qualifying service;
(c) By direct recruitment from amongst the Advocates who have been, for not less than seven years, practicing as an Advocate, as on the last date fixed for the submission of application forms." (emphasis supplied)
12. It would be appropriate to take note of paragraphs 57, 58, 59, 99 and 102 of Deepak Aggarwal (supra) relied on by learned counsel for the petitioner, which are quoted as under:-
"57. In Sushma Suri, a three-Judge Bench of this Court considered the meaning of the expression "advocate" occurring in Article 233 (2) of the Constitution and unamended Rule 49 of the BCI Rules. In paragraph 6 of the Report (Pg. 335) this Court held as under :
"6. If a person on being enrolled as an advocate ceases to practise law and takes up an employment, such a person can by no stretch of imagination be termed as an advocate. However, if a person who is on the rolls of any Bar Council is engaged either by employment or otherwise of the Union or the State or any corporate body or person practises before a court as an advocate for and on behalf of such Government, corporation or authority or person, the question is whether such a person also answers the description of an advocate under the Act. That is the precise question arising for our consideration in this case."
58. Then in paragraph 8 of the Report, this Court observed that for the purposes of the 1961 Act and the BCI Rules, a law officer (Public Prosecutor or Government Pleader) would continue to be an advocate. Not accepting the view of Delhi High Court in Oma Shanker Sharma v. Delhi Administration case (C.W.P. No. 1961 of 1987), this Court having regard to the object of recruitment under Article 233(2) held in paragraph 9:
"9. .........To restrict it to advocates who are not engaged in the manner stated by us earlier in this order is too narrow a view, for the object of recruitment is to get persons of necessary qualification, experience and knowledge of life. A Government Counsel may be a Public Prosecutor or Government Advocate or a Government Pleader. He too gets experience in handling various types of cases apart from dealing with the officers of the Government. Experience gained by such persons who fall in this description cannot be stated to be irrelevant nor detrimental to selection to the posts of the Higher Judicial Service. The expression "members of the Bar" in the relevant Rule would only mean that particular class of persons who are actually practising in courts of law as pleaders or advocates. In a very general sense an advocate is a person who acts or pleads for another in a court and if a Public Prosecutor or a Government Counsel is on the rolls of the Bar Council and is entitled to practise under the Act, he answers the description of an advocate."
59. With regard to unamended Rule 49 of the BCI Rules, this Court held as under :
"10. Under Rule 49 of the Bar Council of India Rules, an advocate shall not be a full-time employee of any person, Government, firm, corporation or concern and on taking up such employment, shall intimate such fact to the Bar Council concerned and shall cease to practise as long as he is in such employment. However, an exception is made in such cases of law officers of the Government and corporate bodies despite his being a full-time salaried employee if such law officer is required to act or plead in court on behalf of others. It is only to those who fall into other categories of employment that the bar under Rule 49 would apply. An advocate employed by the Government or a body corporate as its law officer even on terms of payment of salary would not cease to be an advocate in terms of Rule 49 if the condition is that such advocate is required to act or plead in courts on behalf of the employer. The test, therefore, is not whether such person is engaged on terms of salary or by payment of remuneration, but whether he is engaged to act or plead on its behalf in a court of law as an advocate. In that event the terms of engagement will not matter at all. What is of essence is as to what such law officer engaged by the Government does -- whether he acts or pleads in court on behalf of his employer or otherwise. If he is not acting or pleading on behalf of his employer, then he ceases to be an advocate. If the terms of engagement are such that he does not have to act or plead, but does other kinds of work, then he becomes a mere employee of the Government or the body corporate. Therefore, the Bar Council of India has understood the expression "advocate" as one who is actually practising before courts which expression would include even those who are law officers appointed as such by the Government or body corporate.
99. What we have said above gets fortified by Rule 43 of the BCI Rules. Rule 43 provides that an advocate, who has taken a full-time service or part-time service inconsistent with his practising as an advocate, shall send a declaration to that effect to the respective State Bar Council within time specified therein and any default in that regard may entail suspension of the right to practice. In other words, if full-time service or part-time service taken by an advocate is consistent with his practising as an advocate, no such declaration is necessary. The factum of employment is not material but the key aspect is whether such employment is consistent with his practising as an advocate or, in other words, whether pursuant to such employment, he continues to act and/or plead in the courts. If the answer is yes, then despite employment he continues to be an advocate. On the other hand, if the answer is in negative, he ceases to be an advocate.
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."
13. It would also be relevant to take note of Dheeraj Mor (supra) as relied on by learned counsel for the respondent-High Court, relevant paragraphs whereof are quoted as under:-
"13. Article 233(2) starts with a negative stipulation that a person who is not already in the service of the Union or the State, shall be eligible only to be appointed as District Judge if he has been an advocate or a pleader for not less than 7 years and is recommended by the High Court for appointment. The expression 'in the service of the Union or of the State' has been interpreted by this Court to mean the judicial service. A person from judicial service can be appointed as a District Judge. However, Article 233(2) provides that a person who is not in the service of the Union, shall be eligible only if he has been in practice, as an advocate or a pleader for 7 years; meaning thereby, persons who are in service are distinguished category from the incumbent who can be appointed as District Judge on 7 years' practice as an advocate or a pleader. Article 233(2) nowhere provides eligibility of inservice candidates for consideration as a District Judge concerning a post requiring 7 years' practice as an advocate or a pleader. Requirement of 7 years' experience for advocate or pleader is qualified with a rider that he should not be in the service of the Union or the State. Article 233 provides two sources of recruitment, one from judicial service and the other from advocates or pleaders. There are two separate streams provided; one is for persons in judicial service, and the other is for those not in judicial service of the Union or the State and have practiced for seven years. The expression 'in service of the Union or the State' has been interpreted in Chandra Mohan (supra) to mean judicial service, not any other service of the Union or the State. Thus, it is clear that the members of the judicial service alone are eligible for appointment as against the post of District Judge as the only mode provided for the appointment of inservice candidates is by way of promotion. They can stake their claim as per rules for promotion or merit promotion as the case may be. This Court has excluded the persons from the Indian Civil Service, the Provincial Judicial Service, or other Executive Services, before Independence, recruitment to the post of District Judge was provided from other services also. In Chandra Mohan (supra), this Court held that no person from the Executive Service can be promoted as District Judge. There is separation of the judiciary in terms of Article 50 of the Constitution of India. It mandates the State to take steps to separate the judiciary from the Executive in the public services of the State. Article 50 is extracted hereunder:
"50. Separation of judiciary from executive. The State shall take steps to separate the judiciary from the executive in the public services of the State."
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 refers 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.
17. After having answered the question about recruitment from the Bar, the further question considered in Chandra Mohan (supra) was whether the Governor could directly appoint persons from service other than judicial service as District Judges in consultation with the High Court. They belonged to the executive branch of the Government and performed certain revenue and ministerial functions. This Court took note of the fact that in the preIndependence era, there was a demand that the judiciary should be separated from the Executive, and that was based upon the assumption that unless they were separated, independence of the judiciary at the lower level would be a mockery. Thus, Article 50 of Directive Principles of State Policy provides that States to take steps to separate judiciary from the executive in public services of the State. There shall be separate judicial service from the executive service. This Court considered the provisions of Articles 234, 235, 236 and 237 and observed that there are two sources of recruitment, services of the Union or State and members of the Bar. This Court observed thus:
"15. With this background, if the following provisions of the Constitution are looked at, the meaning of the debated expressions therein would be made clear:
We have already extracted Art. 233.
Article 234. Appointments of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State.
Article 235. The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district Judges shall be vested in the High Court; but nothing in this Article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.
Article 236. In this Chapter
(a) the expression "district judge" includes judges of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge:
(b) the expression "judicial service" means a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge.
Article 237. The Governor may by public notification direct that the foregoing provisions of this Chapter and any rules made thereunder shall with effect from such date as may be fixed by him in that behalf apply in relation to any class or classes of magistrates in the State as they apply in relation to persons appointed to the judicial service of the State subject to such exceptions and modifications as may be specified in the notification.
The gist of the said provisions may be stated thus:
Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State. There are two sources of recruitment, namely, (i) service of the Union or of the State, and (ii) members of the Bar. The said judges from the first source are appointed in consultation with the High Court and those from the second source are appointed on the recommendation of the High Court. But in the case of appointments of persons to the judicial service other than as district judges they will be made by the Governor of the State in accordance with rules framed by him in consultation with the High Court and the Public Service Commission. But the High Court has control over all the district courts and courts subordinate thereto, subject to certain prescribed limitations."
(emphasis supplied) As to the question whether persons from other services can be appointed as District Judges, the expression service of Union or State, has been held to be construed to be judicial service in Article 233(2) thus:
16. So far there is no dispute. But the real conflict rests on the question whether the Governor can appoint as district judges persons from services other than the judicial service; that is to say, can he appoint a person who is in the police, excise, revenue or such other service as a district judge? The acceptance of this position would take us back to the pre independence days and that too to the conditions prevailing in the Princely States. In the Princely States one used to come across appointments to the judicial service from police and other departments. This would also cut across the wellknit scheme of the Constitution and the principle underlying it, namely, the judiciary shall be an independent service. Doubtless if Art. 233(1) stood alone, it may be argued that the Governor may appoint any person as a district judge, whether legally qualified or not, if he belongs to any service under the State. But Art. 233(l) is nothing more than a declaration of the general power of the Governor in the matter of appointment of district judges. It does not lay down the qualifications of the candidates to be appointed or denote the sources from which the recruitment has to be made. But the sources of recruitment are indicated in cl. (2) thereof. Under cl. (2) of Art. 233 two sources are given, namely, (i) persons in the service of the Union or of the State, and (ii) advocate or pleader. Can it be said that in the context of Ch. VI of Part VI of the Constitution "the service of the Union or of the State" means any service of the Union or of the State or does it mean the judicial service of the Union or of the State? The setting, viz., the chapter dealing with subordinate courts, in which the expression "the service" appears indicates that the service mentioned therein is the service pertaining to courts. That apart, Art. 236(2) defines the expression "judicial service" to mean a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge. If this definition, instead of appearing in Art. 236, is placed as a clause before Art. 233(2), there cannot be any dispute that "the service" in Art. 233(2) can only mean the judicial service. The circumstance that the definition of "judicial service" finds a place in a subsequent Article does not necessarily lead to a contrary conclusion. The fact that in Article 233(2) the expression "the service" is used whereas in Arts. 234 and 235 the expression "judicial service" is found is not decisive of the question whether the expression "the service" in Art. 233(2) must be something other than the judicial service, for, the entire chapter is dealing with the judicial service. The definition is exhaustive of the service. Two expressions in the definition bring out the idea that the judicial service consists of hierarchy of judicial officers starting from the lowest and ending with district judges. The expressions "exclusively" and "intended" emphasise the fact that the judicial service consists only of persons intended to fill up the posts of district judges and other civil judicial posts and that is the exclusive service of judicial officers. Having defined "judicial service" in exclusive terms, having provided for appointments to that service and having entrusted the control of the said service to the care of the High Court, the makers of the Constitution would not have conferred a blanket power on the Governor to appoint any person from any service as a district judge.
18. We, therefore, construe the expression "the service" in cl. (2) of Art. 233 as the judicial service."
(emphasis supplied)
23. In Deepak Aggarwal (supra) a threeJudge Bench of this Court considered the provisions of Article 233(2) and held that service in Article 233 to mean judicial service and there is dichotomy of sources of recruitment, namely, (i) from judicial service; and (ii) from the advocate/pleader or in other words from the Bar. The meaning of the term advocate/pleader too has been considered by this Court. The expression "advocate" or "pleader" refers to the members of the Bar practicing law. Relying upon Sushma Suri v. Govt. (NCT of Delhi), (1999) 1 SCC 330, this Court further observed that members of the Bar meant classes of persons who were practicing in a court of law as pleaders or advocates. This Court further held that in Article 233(2), "if he has been for not less than seven years," the present perfect continuous tense is used for a position which began at some time in the past and is continuing. Therefore, one of the essential requirements is that such a person must with requisite period be continuing as an advocate on the date of application. This Court has observed:
"70. A few decisions rendered by some of the High Courts on the point may also be noticed here. In Sudhakar Govindrao Deshpande v. State of Maharashtra, 1986 Lab IC 710 (Bom) the issue that fell for consideration before the Bombay High Court was whether the petitioner therein who was serving as Deputy Registrar at the Nagpur Bench of the Bombay High Court, was eligible for appointment to the post of the District Judge. The advertisement that was issued by the High Court inviting applications for five posts of District Judges, inter alia, stated that, "candidate must ordinarily be an advocate or pleader who has practised in the High Court, Bombay or court subordinate thereto for not less than seven years on 110 1980". The Single Judge of the Bombay High Court considered Articles 233, 234 and 309 of the Constitution, relevant recruitment rules and noted the judgments of this Court in Chandra Mohan v. State of U.P., AIR 1966 SC 1987, Satya Narain Singh v. High Court of Judicature of Allahabad, (1985) 1 SCC 225 and Rameshwar Dayal v. State of Punjab, AIR 1961 SC 816. It was observed as follows: (Sudhakar case, Lab IC p. 715, para 16) "16. ... the phrase 'has been an advocate or a pleader' must be interpreted as a person who has been immediately prior to his appointment a member of the Bar, that is to say either an advocate or a pleader. In fact, in the above judgment, the Supreme Court has repeatedly referred to the second group of persons eligible for appointment under Article 233(2) as 'members of the Bar'. Article 233(2) therefore, when it refers to a person who has been for not less than seven years an advocate or pleader refers to a member of the Bar who is of not less than seven years' standing."
89. We do not think there is any doubt about the meaning of the expression "advocate or pleader" in Article 233(2) of the Constitution. This should bear the meaning it had in law preceding the Constitution and as the expression was generally understood. The expression "advocate or pleader" refers to legal practitioner and, thus, it means a person who has a right to act and/or plead in court on behalf of his client. There is no indication in the context to the contrary. It refers to the members of the Bar practising law. In other words, the expression "advocate or pleader" in Article 233(2) has been used for a member of the Bar who conducts cases in court or, in other words acts and/or pleads in court on behalf of his client. In Sushma Suri v. Govt. (NCT of Delhi), (1999) 1 SCC 330, a threeJudge Bench of this Court construed the expression "members of the Bar" to mean class of persons who were actually practising in courts of law as pleaders or advocates. ...
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."
(emphasis supplied) It is clear from the decision of Deepak Aggarwal (supra) that recruitment from the Bar is only from among practicing advocates and those continuing as advocates on the date of appointment. The submission that the issue of eligibility of inservice candidates did not come up for consideration is of no consequence as provisions of Article 233(2) came up for consideration directly before this Court.
32. Consistently, this Court in its previous judgments has taken the view which we now take. We find absolutely no reason to take a different view, though it was urged that mistakes committed earlier should not continue. We find the argument to be devoid of substance and based upon misapprehensions. We have found that the aforesaid decisions are vivid and clear, and there is no room to entertain such a submission then for a moment. Even otherwise, when the law has been administered in this country after Independence in the manner mentioned above on the principle of stare decisis and rules framed by various High Courts, we find ourselves unable to accept the submission raised on behalf of inservice candidates. The decisions in Satya Narain Singh (supra), Deepak Aggarwal (supra) and All India Judges Association case (supra) also cannot be said to be contrary to the provisions of Article 233. We unhesitatingly reject the submission to the contrary.
45. 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 practicing 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 practicing advocate having minimum 7 years' experience.
47. We answer the reference as under :
(i) The members in the judicial service of the State can be appointed as District Judges by way of promotion or limited competitive examination.
(ii) The Governor of a State is the authority for the purpose of appointment, promotion, posting and transfer, the eligibility is governed by the Rules framed under Articles 234 and 235.
(iii) Under Article 232(2), an Advocate or a pleader with 7 years of practice can be appointed as District Judge by way of direct recruitment in case he is not already in the judicial service of the Union or a State.
(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.
(v) The rules framed by the High Court prohibiting judicial service officers from staking claim to the post of District Judge against the posts reserved for Advocates by way of direct recruitment, cannot be said to be ultra vires and are in conformity with Articles 14, 16 and 233 of the Constitution of India.
(vi) The decision in Vijay Kumar Mishra (supra) providing eligibility, of judicial officer to compete as against the post of District Judge by way of direct recruitment, cannot be said to be laying down the law correctly. The same is hereby overruled."
14. In Writ A No. 46742 of 2015 (Smt. Ruchi Chaudhary vs. High Court of Judicature at Allahabad and another) decided on 1.9.2015 this Court held that in a case of private job, decision of Deepak Aggarwal (supra) is of no help. Relevant paragraphs of the aforesaid judgment are quoted as under:-
"Learned Senior Counsel appearing for the petitioner pointed out that as the petitioner was enrolled as an advocate on 12 January 2002 and had worked as a Senior Analyst Para Legal in the CPA Global from 17 May 2010 to 6 June 2014 and had filled up application form on 10 June 2014, she had more than seven years standing as on 1 January 2015. The contention advanced by learned Senior Counsel for the petitioner is that not only did the petitioner have more than seven years standing prior to taking up the assignment of a Senior Analyst Para Legal on 17 May 2010 but even otherwise it cannot be urged that the petitioner was not an advocate of not less than seven years standing preceding the date of her application as she had not surrendered her licence and she was also performing work of a legal nature as she was a Senior Analyst Para Legal in the CPA Global. Learned Senior Counsel has, in support of his contention, placed reliance upon the provisions of Article 233 of the Constitution and also the decision of the Supreme Court in Deepak Aggarwal, particular to paragraphs 62, 62.2, 94 and 98. Learned Senior Counsel also placed reliance upon the provisions of Article 217(2)(b) of the Constitution and the decision of the Supreme Court in Mahesh Chandra Gupta Vs. Union of India & Ors.3.
Sri Manish Goyal, learned counsel for the respondents has also placed reliance upon the decision of the Supreme Court in Deepak Aggarwal and on a decision of a Division Bench of this Court in Writ-C No.664 of 20154. It is the submission of learned counsel for the respondents that in view of the provisions of Article 233 of the Constitution as interpreted by the Supreme Court in Deepak Aggarwal, the expression 'if he has been for not less than seven years an advocate' in Article 233(2) of the Constitution would mean seven years as an advocate immediately preceding the date of application and since the petitioner was not an advocate immediately preceding the date of the application, the candidature of the petitioner was rightly rejected.
.......
Learned Senior Counsel for the petitioner then contended that in any case, the nature of the work of the petitioner as a Senior Analyst Para Legal in CPA Global from 17 May 2010 to 6 June 2014 should not disentitle the petitioner from being considered as eligible for the post. The contention of learned Senior Counsel is that the service rendered on the post of Senior Analyst Para Legal is consistent with the work of an advocate and, therefore, in view of the decision of the Supreme Court in Deepak Aggarwal, she is eligible for appointment.
.........
In the present case, the petitioner was appointed as a full time Senior Analyst Para Legal. The application form submitted by the petitioner also shows that the petitioner is receiving salary of Rs.30,315/- per month. Her service conditions would also be governed by the rules framed by CPA Global.
This apart, from the application form submitted by the petitioner which has been enclosed with the writ petition, it transpires that the petitioner was enrolled as an advocate with the U.P. Bar Council on 12 January 2002 and the period of employment which the petitioner has mentioned in the application form is from 17 May 2010 to 6 June 2014. The petitioner has also stated that her standing as an advocate as on 1 January 2015 is eight years, three months and twenty-eight days. This is obviously the period commencing 12 January 2002 and ending 16 May 2010. The petitioner herself not considered for the period she was in employment with CPA Global as a Senior Analyst Para Legal.
The decision in the case of Deepak Aggarwal, therefore, does not help the petitioner."
(emphasis supplied)
15. It would also be relevant to take note of the judgment of this Court passed in Writ A No. 25580 of 2018 (Shiv Kumar and another vs. Honerable High Court of Judicature at Allahabad and another) decided on 5.4.2019, relevant paragraphs whereof are quoted as under:-
"It would be profitable to first refer to the various statutory provisions regarding the eligibility and appointment to the post of District Judge/UP HJS before proceeding to answer the controversy arising in this petition.
The first and foremost provision in this regard is Article 233 of the Constitution of India which reads as under:-
233. Appointment of district judges:-
"(1) Appointments of persons to be, and the posting and promotion of district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.
(2) A person not already in the service of the 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."
Article 233 (2) in unequivocal term provides that a person not already in service shall be eligible for appointment as District Judge if he has been in practice as an advocate or pleader for not less than 7 years provided his name is recommended for appointment by the High Court. In other words, as regards a person not already in service what is required is that he should be an advocate or pleader of 7 years standing and that his name is recommended by the High Court for appointment as District Judge. Thus, 7 years of standing as an advocate is one of the essential eligibility condition for appointment as District Judge.
After the above constitutional provision comes the Bar Council of India Rules framed under Section 49 of the Advocates Act, 1961. Rules 47 to 52 of the said Rules provide regarding employment of an Advocate.
In this regard, Rule 49 is relevant of our purpose and is quoted below:-
"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"
The aforesaid rule completely prohibits an advocate from taking any full time employment during his continuance of practice and provides that if he so takes up employment, he shall inform the Bar Council whereupon he shall cease to be in practice as an advocate so long his employment continues. Therefore, as soon as an advocate enrolled with the Bar Council takes up full time salaried employment he ceases to practice as an advocate.
The UP HJS Rules, 1975 vide Rule 5 provides for the source of recruitment to the Higher Judicial Service. It provides for three sources namely; by promotion from the Civil Judge (Senior Division); by promotion through limited competitive examination of Civil Judge (Senior Division); and by direct recruitment from amongst the advocates.
The aforesaid 3rd source of recruitment is relevant for our purpose and therefore Rule 5 (c) alone of the Rules is being reproduced herein below:-
5. Source of recruitment:-
(a) ..................
(b) ...................
(c) by direct recruitment from amongst the Advocates of not less than seven years standing on the first day of January next following the year in which the notice inviting applications is published"
A bare reading of the aforesaid Rule reveals that the eligibility for direct recruitment to the UP HJS is from amongst the advocates of not less than 7 years standing meaning thereby that a minimum of 7 years standing as an Advocate is a sine-qua-non for selection/appointment in UP HJS through direct recruitment.
It is in this context that a question has arisen before us whether a person or an advocate who takes up full time employment with the Bank as Law Officer and in discharge of his duties may be appearing for the employer before the law courts would still continue to be an advocate so as to count the period in service towards his standing as an advocate for selection/appointment to the UP HJS/District Judge.
The issue is very simple if we go by the strict literary sense in which the aforesaid provisions have been couched.
Article 233 (2) clearly provides 7 years standing as an advocate as the condition for eligibility for appointment as District Judge. Same is the position that has been reiterated by Rule 5 (c) of the UP HJS Rules, 1975. Thus, 7 years of standing as an advocate on the relevant date is sine-qua-non for appointment as District Judge or in UP HJS. At the same time Rule 49 of the Bar Council of India Rules clearly stipulates that an advocate who accepts a full time salaried employment ceases to practice as an advocate so long as he continues in such employment. In other words, as soon as an advocate enters into full time salaried employment, he looses the right to practice even though he may represent the employer before the law courts.
Rule 49 of the Bar Council of India Rules creates a legal fiction to the effect that a person duly enrolled as an advocate ceases to be one as soon as he takes a full time employment on salary even if continues to occasionally appear in law Court.
The purpose of creating a legal fiction is to create an imaginary thing to be legally in existence even if it does not exist in reality. So the image created by legal fiction has to be recognized as real, otherwise the purpose of such legal fiction would stand frustrated.
In such a situation, the petitioner who practiced as an advocate from 8.10.2010 to 6.10.2014 and then took up a full time salaried employment did not have to his credit 7 years of standing as an advocate while applying for UPHJS. The period of full time employment as Law Officer with the Bank despite his appearance before the court as part of the service condition would not make him a practicing advocate for the above purpose. The period of full time employment can not be treated as time spent on practice as an advocate.
In Satish Kumar Sharma a three Judges Bench was seized with a controversy with regard to withdrawal of the enrolment of an advocate by the Bar Council as he was a permanent employee of Himachal Pradesh State Electricity Board and was holding the post of Deputy Secretary with it. In the said case the advocate obtained the law decree in the year 1975 and entered into full time employment of the Board as Law Officer Grade-II and later rose to the post to the Deputy Secretary. During the course of employment he was permitted by the Board to act an advocate on its behalf. Later, he also got himself enrolled on 9.7.1984 as an advocate. However, the enrollment was withdrawn as he was in full time employment. The withdrawal of the enrolment was challenged by him before the Division Bench of the High Court but failed. The matter went up to the Supreme Court where an affidavit of the advocate to the effect that his duties with the Board right from Law Officer to the present post were exclusively those of an advocate and that he had been personally appearing for the Board before the various courts was brought on record but even then it was held that as the appellant was undoubtedly a full time salaried employee at the time of his enrolment as an advocate and continues to be so he can not be conferred with the status of an advocate. His duties, may be exclusively to work/plead in courts but having regard to the plain language and clear term of Rule 49 of the Bar Council of India Rules and looking to the fact that his substantial and predominant duties were not that of a lawyer except for mere occasional appearance in some courts solely on behalf of the Board would not make him an advocate.
In Haniraj L Chulani (Dr.)3 it was observed that legal profession requires full time attention and would not countenance advocates riding two horses or more at a time.
In the said case the petitioner was a medical practitioner and wanted to get himself enrolled as an advocate after obtaining decree of LLB. It was in that connection that the Court observed as above and proceeded to observe further as under:-
"It is axiomatic that an advocate has to burn the midnight oil for preparing his cases for being argued in the court next day. Advocates face examination every day when they appear in courts. It is not as if that after court hours an advocate has not to put in hard work on his study table in his chamber with or without the presence of his clients who may be available for consultation. To put forward his best performance as an advocate he is required to give wholehearted and full-time attention to his profession. Any flinching from such unstinted attention to his legal profession would certainly have an impact on his professional ability and expertise. If he is permitted to simultaneously practise as a doctor then the requirement of his full-time attention to the legal profession is bound to be adversely affected. Consequently, however equally dignified may be the profession of a doctor he can not simultaneously be permitted to practice law which is a full-time occupation. It is for ensuring the full-time attention of legal practitioners towards their profession and with a view to bringing out their best so that they can fulfill their role as an officer of the court and can give their best in the administration of the justice, that the impugned rule has been enacted by the State Legislature."
In Deepak Aggarawal the question that was raised before the Supreme Court was whether a public prosecutor/ Assistant Public Prosecutor/District Attorney/Assistant District Attorney/Deputy Advocate General who is in full time employment of the Government seizes to be an advocate or pleader within the meaning of Article 233 (2) of the Constitution.
It is in context with the above controversy that the Supreme Court referring to its earlier decision in Sushma Suri 4 considered the meaning of the expression 'advocate' used in the un-amended Rule 49 of the Bar Council of India Rules and held that if a person was on the roll of the Bar Council and was engaged either by employment or otherwise by the Union of India or the State for the purpose of practice before a court as an advocate such a person does not seize to be an advocate.
The aforesaid decision was in reference to the employment of an advocate as a lawyer and not for doing any other office duty. The predominant purpose of the employment in such a situation was that of an advocate rather than that of an official of the Government.
A Division Bench of this Court in Writ A No. 59375 of 2014 (Smt. Rashmi Sharma Vs. State of U.P., and 3 others) vide judgment and order dated 12.11.2014 decided a similar controversy which also related to the recruitment of U.P. HJS. In the said case also the petitioner was appointed as a full time Deputy Manager (Law) in Andhra Bank. Thus his name was not included in the list of eligible candidates for UP HJS on the ground that he was in full time employment. The Division Bench on consideration of the entire case law on the subject including Deepak Aggarwal came to the conclusion that mere appearance of the candidate before the Lok Adalat as representative of the Bank does not make him eligible and that the decision of the Deepak Aggarwal is of no help. The petition was accordingly dismissed.
A similar view was taken by another Division Bench of this Court vide its judgment and order dated 1.9.2015 passed in Writ A No. 46742 of 2015 (Smt. Ruchi Chaudhari Vs. High Court of Judicature of Allahabad and another). In the said case the candidate for U.P. HJS after enrolment as an advocate had taken up job as a Senior Analyst para legal in a company CPA Global. The period of working in the aforesaid full time employment was not counted towards her standing as an advocate and the writ petition was dismissed holding that the decision of the Deepak Aggarwal does not help her.
In yet another case a Division Bench of this Court in deciding Writ A No. 32440 of 2014 (Deep Kumar and 3 others Vs. State of U.P., and another) vide its judgment and order dated 16.6.2014 distinguishing Deepak Aggarwal's case did not permit the Law Officers in employment of the Bank to participate for direct recruitment to the U.P. Higher Judicial Service Examination of the year 2014 as they were full-time salaried employees of the Bank and no longer the advocates.
A similar view was expressed by one another Division Bench of which one of us (Pankaj Mithal, J.) was a member in Rajesh Chaubey which related to the present recruitment to the UP HJS. The Division Bench considering the decision of the Supreme Court in Deepak Aggarwal's case and the eligibility condition contained in Article 333 (2) and Rule 5 (c) of the UP HJS Rules read with Rule 49 of the Bar Council of India Rules held that once a person by virtue of his full time employment ceases to be an advocate, the period of service rendered by him would not ennure to his benefit for determining his standing as an advocate.
It may worth noting that the case of Deepak Aggarwal related to Public Prosecutors or Advocates in employment of Government who by nature of the duties assigned continued to appear before the law courts regularly on behalf of the employer. Their work during employment was treated to be predominantly to be of an advocate and was thus added towards standing as an advocate.
The position in the case of employment in other capacity is quite different from that of employment as public prosecutor. In such other services appearance before the Court is occasional and is not the predominant part of the duties. Therefore, mere occasional appearance of such employees in Courts/ tribunals while in full time employment in few cases that too solely on behalf of their employer can not be taken to mean that they are continuing to be in practice as advocates. It is but natural that in such employment their main job is not that of pleading and arguing cases before the law courts on behalf of a variety of persons as is expected of an advocate. The nature of their duties is mostly of advising, conveyance etc., which may not allow them enough time for regular appearance before the law courts thus depriving them of experience of a lawyer. Any effort to treat persons in such employment as practicing advocates would be de hors of Rule 49 of the Bar Council of India Rules. An advocate is a person who assists, defends, pleads, or prosecute for another. At times he may represent the State or the public at large in matters of public concern such as in criminal cases and for this limited purpose is a public advocate. The public prosecutor or the district attorney as such by the nature of his work is a public advocate. He as such despite his full time engagement with the State does not cease to be advocate. This is an exception to Rule 49 of the Bar Council of India Rules.
An advocate is a responsible officer of the Court. He is as important as a Judge in the matter of dispensation of justice. He is virtually a minister of justice equally in line with a Judge. He acquires the skills of advocacy by experience and it is often said that at times experience is much more important than knowledge. It is more true in the profession of law wherein devotion to higher cause, the cause of truth and justice is more vital. One gains knowledge through experience by regular practice which can not be acquired otherwise while in employment or by appearance in some stray cases. It is therefore elementary for holding the post of DJ/UPHJS to have atleast 7 years of actual standing as an advocate and not the theoretic knowledge of law as in full time employment.
In the above situation, the persons employed as public prosecutor/District Authority predominantly discharge functions of advocates and would be recognized as advocates in the light of Deepak Aggarwal's case but in no other situation or employment. In the present case, there is no material or evidence to establish that the predominant function of the employment of the petitioner as defined/described in the letter of appointment issued to him by his employer Bank is that of practice as a lawyer and that the other functions discharged by him are only bare minimum or incidental. The Circular letter of the Reserve Bank of India does not seek to alter the terms and conditions of employment of the petitioner, neither do stray appearances recorded in some court cases establish that the Bank had engaged the services of the petitioner, predominantly to represent it in cases before courts, tribunals etc. In view of the aforesaid facts and circumstances, we are of the opinion that in the light of the legal fiction created by Rule 49 of the Bar Council of India Rules, the petitioner who has full time employment of the SBI ceased to be an advocate and his service period would not be counted/added in his practice as an advocate to make him eligible for UPHJS.
Accordingly, there is no force in the petition. It is therefore dismissed."
(emphasis supplied)
16. The issue involved herein has also been considered time and again by Hon'ble Apex Court in the cases of Rameshwar Dayal vs. State of Punjab AIR 1961 SC 816, Chandra Mohan vs. State of U.P. AIR 1966 SC 1987, Sushma Suri vs. Govt of National Capital Territory of Delhi (1999) 1 SCC 330 and Satish Kumar Sharma vs. Bar Council of Himachal Pradesh (2001) 2 SCC 365, which have already been considered in the judgments quoted above, hence to avoid repetition are not being referred to separately.
17. Similarly, this issue has been considered by this Court in the cases of Rajesh Chaubey vs. Hon. High Court Judicature at Allahabad and another 2019 (3) ADJ 60, Smt. Rashmi Sharma vs. State of U.P. (Writ A No. 59375 of 2014) decided on 12.11.2014 and Rajesh Chaubey vs. Hon. High Court of Judicature at Allahabad and another (Writ A No. 27608 of 2018) decided on 2.1.2019 also.
18. The question was again considered and decided by this Court in Writ A No. 33829 of 2015 (Kumar Mitakshar vs. State of U.P. and others) decided on 20.4.2023. Relevant paragraphs of the aforesaid judgement are also quoted as under:-
"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 cut off 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 cut off 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 cut off 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."
(emphasis supplied)
19. The discussion made hereinabove clearly establishes that as per eligibility condition contained in Article 233 (2) of the Constitution of India and Rule 5 (c) of the U.P. H.J.S. Rules read with Rule 43 and 49 of the Bar Council of India Rules framed under Section 49 of the Advocates Act, 1961 completely prohibits an advocate from taking a part time / full time employment during continuance of his practice and if he takes any such employment he shall inform the Bar Council whereas he shall ceases to practice as an advocate so long as he continues in such employment and that Rule 49 creates a legal fiction that on taking of full time employment he ceases to be an advocate and cannot be conferred status of an advocate.
20. No doubt, it can be argued that nature of work matters, however, the law as discussed above clearly establishes that now settled law is that full time work/employment as a public prosecutor is distinguishable and is different from full time employment with any other bank/private company/ employer etc. This conclusion can be safely drawn from the judgement of Dheeraj Mor (supra) and various other judgements of Division Bench of this Court.
21. Coming back to the facts of this case, it may be noted that the petitioner was registered as an advocate on 16.11.1998; vide appointment letter dated 15.1.2009 he was appointed as Law Officer in a private company, namely, M/s Alliance Builders and Contractors Limited Bareilly; it is alleged that apart from the said company, he had filed Vakalatnamas on behalf of other litigants; he appeared in UP HJS Examination-2009 and qualified in prelims and written examination but was not permitted to appear in interview on the ground that he was in full time salaried class employment; as he intended to appear in UP HJS, he tendered his resignation from the company on 01.1.2010, which was accepted on 01.2.2010; in UP HJS 2012, he could not qualify in interview; in UP HJS-2014, he could not qualify. In the relevant UP HJS Examination-2016, he filled the form, however, allegedly there was some mistake hence, he filed affidavit dated 12.6.2016 and cleared prelims and written examination and was called for interview on 22.4.2017 but his name did not find figure in the select list; when he came to know that he had obtained 471 marks whereas last general category selected candidate has obtained only 455 marks, he filed representation which was rejected. Hence, present petition has been filed.
22. We have already noted and discussed the case law on the issue in hand extensively. We have also noted the resolution of the Selection and Appointment Committee taken in its meeting dated 17.5.2017. The admitted facts of the case are that as per para 10 of the appointment letter dated 15.1.2009 the appointment of the petitioner was on a full time basis with specific condition that he shall devote full time to the duty assigned by the company and that he will not engage himself for any other person, firm or company in any capacity during his appointment with the company. Further, the petitioner in his resignation letter dated 01.1.2010 also clearly admits this fact that he is in full time employment of the company and for this reason he was prevented from appearing in interview of the UP HJS Examination, 2009 and therefore he wishes to tender resignation. Further, his affidavit dated 12.6.2016 also admits this fact he was in private employment from 15.1.2009 to 01.2.2010.
23. During the course of arguments, learned counsel for the petitioner sought to place reliance on a letter dated 19.1.2009 allegedly given by the company, crux whereof appears to be that the petitioner can continue with his other clients as well. We may put it on record that on a pointed query, learned counsel for the petitioner could not dispute the fact that this document has never been mentioned or relied on earlier and has surfaced for first time in the present petition. We, therefore, are not inclined to place reliance thereon. In so far as filing of Vakalatnama on behalf of others in the year 2009-10 is concerned, we restrain ourselves from going into the issue that when the petitioner was in full time employment of a private company, whether, his act of filing Vakalatnama was in violation of Rule 43 and 49 of the Bar Council Rules or was in violation of terms of his appointment as Law Officer of the company, as this issue is not before us.
24. In view of the discussion made hereinabove, we do not find any fault in the resolution of the Selection and Appointment Committee that length of continuous practice of the petitioner on 18.6.2016 from 1.2.2010 was found to be 6 years 4 months and 17 days and thus, he did not fulfill the necessary eligibility criteria of having 7 years continuous practice as on 18.6.2016.
25. The petition is devoid of merits and is accordingly dismissed. No costs.
Order Date :- 23.4.2024 Lalit Shukla