Delhi High Court - Orders
Saurabh Goel vs Registrar General, Delhi High Court on 15 March, 2022
Author: Rajiv Shakdher
Bench: Rajiv Shakdher, Jasmeet Singh
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4333/2022, CM Nos.12962-63/2022 & 12968/2022
SAURABH GOEL .... Petitioner
Through : Mr Jitender Mehta, Adv.
versus
REGISTRAR GENERAL, DELHI HIGH COURT .... Respondent
Through : Mr Gautam Narayan, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
HON'BLE MR. JUSTICE JASMEET SINGH
ORDER
% 15.03.2022 [Physical Court Hearing/Hybrid Hearing (as per request)] CM No.12963/2022
1. The prayer made in the application is to grant exemption from filing typed copies of dim annexures.
2. The application is disposed of with the direction that the applicant/petitioner will file typed/legible copies of dim documents, at least three days before the next date of hearing.
CM No. 12968/20223. Allowed, subject to just exceptions.
W.P.(C) 4333/2022 and CM No.12962/2022[Application filed on behalf of the petitioner seeking interim relief]
4. The petitioner, who is presently employed as an Additional District Judge [in short, "ADJ"] in Uttar Pradesh, has preferred the instant writ petition under Article 226 of the Constitution of India.
4.1. The petitioner is aggrieved, as he is not being permitted to apply for the post of ADJ in the ensuing examination i.e., Delhi Higher Judicial Service Signature Not Verified Signed By:VIPIN KUMAR RAI WP (C) 4333/2022 Page 1 of 9 Signing Date:16.03.2022 12:43:32 Examination, 2022 [in short, "2022 Examination"]. The impediment in the way of the petitioner is the Delhi Higher Judicial Service Rules, 1970 (as amended on 08.02.2022) [in short, "1970 Rules"].
4.2. The 2022 Examination is being held for the vacant posts which are categorised as direct recruitment posts. Resultantly, it is important to advert to Rule 7(1)(c) and Rule 2(c) of the 1970 Rules :
"2(c) "direct recruit" means a person who is appointed to the Service from the Bar.
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7. Regular recruitment: - (1) Recruitment to the posts in the cadre of District Judge at Entry Level shall be as under:-
(c) 25 percent of the posts shall be filled by direct recruitment from amongst the persons eligible as per rule 7C on the basis of the written and viva voce test, conducted by the High Court."
5. The petitioner claims that at the point in time when he was recruited as ADJ in the Uttar Pradesh Judicial Services, he had come through the direct recruitment route. It is the stand of the petitioner that at the time of recruitment, he had established his eligibility, which was, having practiced for a minimum of seven(7) years at the Bar.
5.1. It is, therefore, the petitioner's contention that denying opportunity to him, to apply for the post of ADJ in the ensuing 2022 Examination is an act, which is, fraught with illegality, arbitrariness and unconstitutionality. 5.2. In this context, Mr Jitender Mehta, who appears on behalf of the petitioner, emphasises that although candidates who have the experience of working with the government and/or the public and private sector are being considered- persons like the petitioner, who are in the judicial service, have been excluded from consideration.
6. Mr Gautam Narayan, who appears on behalf of the respondent, broadly, makes the following submissions :
(i) The 1970 Rules stipulate that only those candidates who are from Bar, can be considered for appointment under the direct recruitment route.Signature Not Verified Signed By:VIPIN KUMAR RAI WP (C) 4333/2022 Page 2 of 9 Signing Date:16.03.2022 12:43:32
(ii) The 2022 Examination notification makes it amply clear that the concerned candidate should have been continuously practicing as an advocate for not less than seven(7) years as on last date of receipt of applications.
(iii) In the writ petition, there is no challenge to the subject notification issued qua the 2022 Examination.
(iv) The issue raised by the petitioner is no longer res integra. In this context, reliance is placed on the judgment dated 28.01.2020, rendered by a Division Bench of this Court in W.P.(C.)No.489/2020, titled Awanish Kumar v. The Registrar General, Hon'ble High Court of Delhi and the decision of the Supreme Court in Dheeraj Mor v. High Court of Delhi, (2020) 7 SCC 401.
7. We may note that Mr Mehta has brought to our notice the fact that insofar as the judgment in Dheeraj Mor case is concerned, a review petition [i.e., Review Petition No.621/2021] has been preferred, in which, notice has been issued by the Supreme Court.
7.1 For this purpose, a copy of the order dated 12.07.2021 passed in Review Petition No.621/2021 has been placed before us.
8. We have heard the learned counsel for the parties. 8.1. Before we proceed further, we may note that the last date for filing the applications has been extended to 26.03.2022, pursuant to the order dated 14.03.2022, passed by the Supreme Court in Special Leave Petition (Civil) No. 4452/2022.
8.2. However, notwithstanding this extension of the last date for filing applications, at the moment, no relief can be granted to the petitioner. The reason why we say so are the following:
(i) The 1970 Rules, as noticed above, make it amply clear that appointment to the posts of ADJ via direct recruitment can only be made from the Bar i.e., only practicing advocates can apply against the advertisement in issue.
(ii) This aspect of the matter received consideration of the Supreme Court in Signature Not Verified Signed By:VIPIN KUMAR RAI WP (C) 4333/2022 Page 3 of 9 Signing Date:16.03.2022 12:43:32 Dheeraj Mor case while examining the scope, import and effect of Article 233(2) of the Constitution of India. The Supreme Court ruled in no uncertain terms that only an advocate or a pleader who had practiced for seven (7) years could be considered for the post of the District Judge and that persons "in-
service" were excluded from appointment to the said post.
(iia) The relevant observations made in this behalf in the Dheeraj Mor's case are set forth hereafter:
"[Hon'ble Mr Justice Arun Mishra ( as he then was) speaking for himself and Hon'ble Mr Justice Vineet Saran]
1. A Division Bench of this Court has referred [Dheeraj Mor v. High Court of Delhi, (2018) 4 SCC 619 : (2018) 2 SCC (L&S) 79] the matters. The question involved in the matters is the interpretation of Article 233 of the Constitution of India as to the eligibility of members of the subordinate judicial service for appointment as District Judge as against the quota reserved for the Bar by way of direct recruitment. The petitioners who are in judicial service, have claimed that in case before joining judicial service a candidate has completed 7 years of practice as an advocate, he/she shall be eligible to stake claim as against the direct recruitment quota from the Bar notwithstanding that on the date of application/appointment, he or she is in judicial service of the Union or State. Yet another category is that of the persons having completed only 7 years of service as judicial service. They contend that experience as a Judge be treated on a par with the Bar service, and they should be permitted to stake their claim. The third category is hybrid, consisting of candidates who have completed 7 years by combining the experience serving as a judicial officer and as advocate. They claim to be eligible to stake their claim against the above quota.
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6. The main question for consideration is the interpretation of Article 233 of the Constitution of India, and based upon its interpretation, the question concerning the rules being ultra vires of the same has to be examined. Rules of various High Courts, as existing preclude members of the judicial service from staking their claim as against the posts Signature Not Verified Signed By:VIPIN KUMAR RAI WP (C) 4333/2022 Page 4 of 9 Signing Date:16.03.2022 12:43:32 reserved for direct recruitment from the Bar. Article 233 is extracted hereunder:
"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."
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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 in-service 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 practised for seven years. The expression "in service of the Union or the State" has been interpreted in Chandra Mohan [Chandra Mohan v. State of U.P., (1967) 1 SCR 77 : AIR 1966 SC 1987] 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 Signature Not Verified Signed By:VIPIN KUMAR RAI WP (C) 4333/2022 Page 5 of 9 Signing Date:16.03.2022 12:43:32 appointment as against the post of District Judge as the only mode provided for the appointment of in-service 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 [Chandra Mohan v. State of U.P., (1967) 1 SCR 77 : AIR 1966 SC 1987], 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 cut-off date, the phrase used is a continuous state of affair from the past. The context "has been in practice" in which it has been used, it is apparent that the provisions refer to a person who has been an advocate or pleader not only on the cut-off date but continues to be so at the time of appointment.
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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 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, Signature Not Verified Signed By:VIPIN KUMAR RAI WP (C) 4333/2022 Page 6 of 9 Signing Date:16.03.2022 12:43:32 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.
xxx xxx xxx [concurring view of Hon'ble Mr Justice Ravindra Bhat] 76.5. Article 233(2) is concerned only with eligibility of those who can be considered for appointment as District Judge. The Constitution clearly states that one who has been for not less than seven years, "an advocate or pleader" and one who is "not already in the service of the Union or of the State" (in the sense that such person is not a holder of a civil or executive post, under the Union or of a State) can be considered for appointment, as a District Judge. Significantly, the eligibility--for both categories, is couched in negative terms. Clearly, all that the Constitution envisioned was that an advocate with not less than seven years' practice could be appointed as a District Judge, under Article 233(2).
76.6. Significantly, Article 233(2) ex facie does not exclude judicial officers from consideration for appointment to the post of District Judge. It, however, equally does not spell out any criteria for such category of candidates. This does not mean however, that if they or any of them, had seven years' practice in the past, can be considered eligible, because no one amongst them can be said to answer the description of a candidate who "has been for not less than seven years" "an advocate or a pleader" (per Deepak Agarwal i.e. that the applicant/candidate should be an advocate fulfilling the condition of practice on the date of the eligibility condition, or applying for the post). The sequitur clearly is that a judicial officer is not one who has been for not less than seven years, an advocate or pleader.
77. The net result of the decision in Chandra Mohan [Chandra Mohan v. State of U.P., (1967) 1 SCR 77 : AIR 1966 SC 1987] , and subsequent decisions which followed it, is that Article 233(2) renders ineligible all those who hold civil posts under a State or the Union, just Signature Not Verified Signed By:VIPIN KUMAR RAI WP (C) 4333/2022 Page 7 of 9 Signing Date:16.03.2022 12:43:32 as it renders all advocates with less than seven years' practice ineligible, on the date fixed for reckoning eligibility. Equally, those in judicial service [i.e. holders of posts other than District Judge, per Article 236(2)] are not entitled to consideration because the provision [Article 233(2)] does not prescribe any eligibility condition. Does this mean that any judicial officer, with any length of service as a member of the judicial service, is entitled to consideration under Article 233(2)? The answer is clearly in the negative. This is because the negative phraseology through which eligibility of holders of civil posts, or those in civil service (of the State or the Union) and advocates with seven years' service is couched. However, the eligibility conditions are not spelt out in respect of those who are in the judicial service."
[Emphasis is ours]
(iii) Although, it has been pointed out that the review petition is pending concerning the judgment rendered in Dheeraj Mor case; in our view, that, by itself, at this juncture, cannot be the reason for granting any relief to the petitioner.
9 The argument raised by Mr Mehta that candidates who have had the experience of working with the government, public and private sector are being considered for appointment under the direct recruitment route-does not impress us, as, firstly, even these candidates will have to fulfil the eligibility criteria i.e., of being practising advocate having a minimum of seven (7) years experience, and secondly, in the given facts of the case, the petitioner neither falls in this stream nor does he fulfil the stipulated eligibility criteria. 9.1. As and when a case comes up in respect of the categories mentioned by the petitioner i.e., those who have worked with the government or in a public sector undertaking or a private sector undertaking, such as a bank, those cases would be examined on their merit, if found necessary. 9.2. Needless to add, the requirement contained in the examination notification qua qualification i.e., that the person should have been continuously working as an advocate for a minimum period of seven(7) years, will have a Signature Not Verified Signed By:VIPIN KUMAR RAI WP (C) 4333/2022 Page 8 of 9 Signing Date:16.03.2022 12:43:32 bearing with regard to all categories 9.3. The petitioner, as noted above, is a judicial officer and is seeking consideration under the direct recruitment route. Insofar as the judicial officers are concerned, they are clearly excluded.
10. Accordingly, CM No.12962/2022 is dismissed.
11. Learned counsels for the parties say that the writ petition should stand over to await the outcome in the review petition preferred in the Dheeraj Mor's case.
12. Accordingly, at request, list the writ petition on 26.05.2022.
RAJIV SHAKDHER, J JASMEET SINGH, J MARCH 15, 2022/aj Click here to check corrigendum, if any Signature Not Verified Signed By:VIPIN KUMAR RAI WP (C) 4333/2022 Page 9 of 9 Signing Date:16.03.2022 12:43:32