Kerala High Court
Jothikumar D vs The State Of Kerala, Represented By The ... on 19 May, 2025
Author: T.R.Ravi
Bench: T.R.Ravi
WP(C) NO. 18569 OF 2025
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2025:KER:34156
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
MONDAY, THE 19TH DAY OF MAY 2025 / 29TH VAISAKHA, 1947
WP(C) NO. 18569 OF 2025
PETITIONER:
JOTHIKUMAR D
AGED 45 YEARS
MUPPATHIL, KATTILMARKET,
THAMALLACKAL NORTH, KUMARAPURAM, HARIPAD,
ALAPPUZHA - DISTRICT, PIN - 690 548
BY ADV DAN ELIAS
RESPONDENTS:
1 THE STATE OF KERALA, REPRESENTED BY THE ADDITIONAL
CHIEF SECRETARY TO GOVERNMENT
HOME DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695 001
2 THE HIGH COURT OF KERALA,
REPRESENTED BY THE REGISTRAR GENERAL
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031
3 THE REGISTRAR GENERAL,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031
4 THE REGISTRAR (DISTRICT JUDICIARY)
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031
SMT. RAMOLA.N/R.
SRI. BIMAL K. NATH. SR. GP.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
19.05.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 18569 OF 2025
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2025:KER:34156
T.R.RAVI.J
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WP(C) No.18569 of 2025
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Dated this the 19th day of May, 2025
JUDGMENT
The petitioner has approached this Court praying for a declaration that he is eligible to apply for the post of District and Sessions Judge in terms of Article 233(2) of the Constitution of India and to quash Clause 5(f) of Notification No.HCKL/2367/2025-REC4 dated 16.04.2025 and Rule 3(2)(f) of the Kerala State Higher Judicial Service Special Rules, 1961, to the extent they impose an eligibility cut-off date of 01.01.2025.
2. It is contended that in view of the dictum laid down by the Hon'ble Supreme Court in Deepak Aggarwal vs. Keshav Kaushik and others [(2013) 5 SCC 277], Dheeraj Mor vs. High Court of Delhi [(2020) 7 SCC 401] and a Division Bench judgment of this Court in Rajanish K.V. vs. Deepa and others [2020 KHC 5612], the special rule has to be held to be against Article 233(2) of the Constitution of WP(C) NO. 18569 OF 2025 3 2025:KER:34156 India. In Deepak Aggarwal (supra), the Hon'ble Supreme Court held that the expression "if he has been for not less than seven years as advocate" in Article 233(2) of the Constitution, should mean seven years as an advocate immediately preceding the application and not seven years any time in the past. The Apex Court held that the the usage of a present perfect continuous tense necessarily means that the practice started some time in the past and is still continuing. The court further held that the requirement is that the person must, with requisite period, be continuing as an advocate on the date of application.
3. The counsel submits that since the application is be submitted on 19.05.2025, the requirement of seven years practice should be as on 19.05.2025 and not any date previous. It is hence submitted that the fixation of 01.01.2025 as cut-off date is wrong. In Dheeraj Mor (supra), the above decision was reiterated. However, in paragraph No.45 of the judgment, the Hon'ble Supreme Court held thus;
"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 WP(C) NO. 18569 OF 2025 4 2025:KER:34156 be practicing 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 practicing advocate having minimum 7 years' experience."
4. The above observation will make it clear that it is open to fix a cut-off date for the purpose of determining the eligibility. Such an interpretation is necessary since there should be some clarity with regard to the date on which the seven years of practice should have been completed. All that is required is that the cut-off date should not be a date which can never be related to the date of submission of the application. In Rajanish K.V (supra), the Division Bench held that the eligibility for being appointed as a District Judge primarily arises from the interpretation of Article 233(2) of the Constitution of India and if the Special Rules depart from the constitutional mandate, it will have to be read in the light of the constitutional provision and the special rules will have no precedence over the interpretation given to Article 233(2) of WP(C) NO. 18569 OF 2025 5 2025:KER:34156 the Constitution of India. If the fixation of the cut-off date is permissible under Article 233(2) of the Constitution of India, Rule 3(2)(f) of the Kerala State Higher Judicial Service Special Rules, 1961 cannot be said to be against the constitutional provision.
5. In the case on hand, the notification was issued on 16.04.2025 and online application could have been submitted from 21.04.2025 onwards. The fixation of cut-off date of 01.01.2025 in a notification which was issued on 16.04.2025 cannot be stated to be a case where the cut-off date is fixed arbitrarily with no nexus to the date on which the application is to be submitted. In the light of paragraph No.45 of the judgment of the Hon'ble Supreme Court in Dheeraj Mor (supra), I do not find any illegality in the notification.
The writ petition fails and is dismissed.
Sd/-
T.R.RAVI sn JUDGE WP(C) NO. 18569 OF 2025 6 2025:KER:34156 APPENDIX OF WP(C) 18569/2025 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF HIS LL.B. DEGREE CERTIFICATE BEARING REGISTER NO 44039 YEAR 2017 DATED 30 SEPTEMBER 2021 Exhibit P2 TRUE COPY OF THE ENROLLMENT CERTIFICATE ISSUED BY THE BAR COUNCIL OF KERALA ROLL NO K/000123/2018 DATED 10/11/2022 Exhibit P3 TRUE COPY OF THE CERTIFICATE OF PRACTICE (COP/2018/273514) ISSUED BY THE BAR COUNCIL OF INDIA DATED 15TH MARCH 2019 Exhibit P4 NOTIFICATION NO. HCKL/2367/2025-REC4 OF HIGH COURT OF KERALA, DATED 16/04/2025 Exhibit P5 TRUE COPY OF THE REPRESENTATION DATED 15 MAY 2025 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS 3 AND 4