Punjab-Haryana High Court
Dr. Rajni Nanda vs Punjab And Haryana High Court And ... on 26 February, 2018
Bench: A.B. Chaudhari, Inderjit Singh
CWP No.22062 of 2017 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.22062 of 2017 (O&M)
Date of decision: February 26, 2018
Dr. Rajni Nanda
......Petitioner
Versus
Punjab and Haryana High Court and another
.....Respondents
CORAM: HON'BLE MR. JUSTICE A.B. CHAUDHARI
HON'BLE MR. JUSTICE INDERJIT SINGH
Present: Mr. K.S. Dadwal, Advocate for the petitioner.
Mr. Sanjeev Sharma, Senior Advocate with
Mr. Vikas Chatrath, Advocate, Ms. Shalini Verma, Advocate,
Mr. Rajanjeet Singh, Advocate
for the respondents-High Court.
****
A.B. CHAUDHARI, J
By the present petition, petitioner-Dr. Rajni Nanda has
sought quashing of communication dated 12.09.2017 (Annexure P-12)
by respondent No.2 rejecting her candidature and with a further prayer to
declare the petitioner eligible and to permit her to participate in the viva
voce for the post of Additional District Judge.
FACTS
The petitioner is having qualification of B.Com (Hons),
LL.B, LL.M, UGC Net Qualified and Ph.D in law and was thus, eligible
for being considered for the post of Additional District Judge. She was
appointed as Assistant Professor in Law at Swami Sarwa Nand Giri
Regional Center, Hoshiarpur against vacant post on purely temporary
basis, vide appointed letter dated 10.09.2010. She served as such till
01.12.2014. Vide notification No.92 dated 16.07.2015, 10 posts of
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Haryana Superior Judicial Services by way of direct recruitment were
notified. She did not apply pursuant to the said notification, but then
respondents issued a corrigendum dated 17.08.2016 postponing the main
examination and inviting of publication. Having noticed the said
corrigendum, the petitioner submitted her application dated 09.09.2016
received on 12.09.2016 by the office of respondent No.2. Thereafter, she
noticed on 12.10.2016, a list of rejected applications and the name of the
petitioner was at Sr. No.9 in the said list and in so far as the petitioner is
concerned, it was mentioned that there was gap in experience which was
required to be explained. She accordingly, submitted an affidavit
(Annexure P-5) explaining the gap. Respondent No.2, thereafter, on
24.12.2016 issued a list of candidates who were allowed to appear
provisionally in the written exam that was scheduled to be held on
10.02.2017 and she was named at Sr. No.316. The petitioner was
allowed to appear for written examination. Thereafter, on 01.02.2017, a
notice was issued by respondent No.2 for submission of certain
documents on or before 21.03.2017 for determining the eligibility under
clause 2(bb) of the notification dated 16.07.2015. It was mentioned in
the notice that in-service candidates who have completed 3 years service
and are otherwise eligible are exempted from submitting the income tax
returns and list of number of court cases. The petitioner had submitted an
affidavit dated 16.03.2017 (Annexure P-9) regarding list of cases. The
petitioner was declared successful, but it was mentioned that the
candidates who were found eligible were subject to removal of certain
discrepancies. In so far as the petitioner is concerned, discrepancy was
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noted at Sr. No.1181 stating therein that ITRs showing Gross
Professional Income of `5 lakhs or more for three years and data
regarding requisite number of court cases for the three years preceding to
application was required to be furnished. The petitioner however, relied
on the stipulation contained in the notice dated 01.03.2017 (Annexure P-
8) wherein, in Para 3, it was mentioned that in-service candidates who
have completed 3 years' service and are are otherwise eligible, are
exempted from submitting the income tax returns and lists of number of
court cases. The petitioner, then found that her candidature was rejected
for non-submission of the required information. The petitioner again
submitted application/representation dated 13.09.2017 (Annexure P-13).
Thereafter, an order was passed on 22.09.2017 served on the petitioner
on 23.09.2017 that her representation dated 13.09.2017 was ordered to
be rejected as the benefit of exemption to the in-service candidate is not
admissible to her as she could not be treated as in-service candidate.
ARGUMENTS
In support of the petition, learned counsel for the petitioner
vehemently argued that the petitioner had removed all the anomalies and
the discrepancies pointed out for submission of gap certificate and the
data of number of Court cases. Admittedly, the petitioner was in-service
during certain period and she being thus, in-service candidate, the
criteria regarding clause 2(bb) about 3 years income tax returns would
not apply in her case. According to the learned counsel for the petitioner,
as a matter of fact, by virtue of the corrigendum dated 17.08.2016 that
was issued by respondents itself, the petitioner was exempted from the
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requirement regarding income tax returns and data of court cases being
in-service candidate. The petitioner was entitled to the benefit of the
judgment of the Apex Court in the case of Vijay Kumar Mishra and
another versus High Court of Judicature at Patna and others, civil
appeal No.7358 of 2016 (arising out of SLP (C) No.17466 of 2016) and
therefore, her candidature could not have been rejected. The reason
given by respondent No.2 for rejection of her candidature for want of
certain documents regarding eligibility criteria is absolutely false and
that she had already furnished those documents. She could be treated as a
candidate from Advocate's category. Learned counsel therefore,
submitted that this petition deserves to be allowed.
Per contra, learned counsel for the respondents opposed the
petition and submitted that the petitioner cannot be said to be in-service
candidate in the first place. Once she is held to be not inservice
candidate, the exemption claimed by her in respect of income yax returns
and data of number of court cases, in no case can be extended to her. The
petitioner did not complete 7 years, the minimum required practice on
the date of her application and that is an admitted position because in her
application itself, she has mentioned the period of practice, at Sr. No.VIII
as from September 2003 to September 2010 and thereafter, from
December 2014 to the date of application. The period that could be
counted is obviously after December 2014 till her application which does
not show completion of 7 years of practice. Counsel for the respondents,
however, agreed that the committee did not consider the aspect regarding
the standing practice of 7 years. He, therefore, prayed for dismissal of the
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writ petition.
CONSIDERATION
We have gone through the entire record and we have also
heard learned counsel for the rival parties at length. The crux of the
submission and the point that arises for consideration is challenge to the
following rejection order (Annexure P-14) made by the committee,
which we quote hereunder:-
"You are hereby informed that your representation dated
13.09.2017 has been considered by the Hon'ble Recruitment
Committee and decided as under:-
"...........Benefit of exemption to the 'in service'
candidates is a admissible to the candidates covered
by the decision of Hon'ble Supreme Court in 'Deepak
Aggarwal vs. Keshav Kaushik and others' and in
'Vijay Kumar Mishra and another Vs. High Court of
Judicature at Patna and others'
Accordingly, Law officers like public
Prosecutor/District Attorney/Judicial Officers are
entitled to this exemption.
Since service rendered by you as Assistant
Professor cannot be counted towards eligibility, you
cannot be counted towards eligibility, you cannot be
treated as 'in service candidate' for the purpose of
income criteria and cases conducted. Hence, the
representation is declined."
Perusal of the above reasons recorded by the committee
show that the petitioner was not treated as in-service candidate for the
purpose of income criteria and the cases conducted and that is the reason
why representation has been declined.
In the light of the above, the question of law that arises for
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consideration is whether the petitioner would be treated as in-service
candidate. Admittedly, the petitioner claimed exemption on her own in
the application claiming herself to be in-service candidate. Now she
cannot be allowed to approbate and reprobate to say that she would fall
in the category of Advocate seeking direct recruitment. The case of the
petitioner was specific that she wanted to seek exemption from
submission of income tax returns and data of court cases being Assistant
Professor in Law at Swami Sarwa Nand Giri Regional Center,
Hoshiarpur. We are, therefore, not prepared to accept the submission
made by learned counsel for the petitioner that her case could be
considered as an Advocate as she completed 7 years of practice. At any
rate, the said submission would not help the petitioner as then she would
not be entitled to claim any exemption in respect of income criteria and
the cases conducted. We are, therefore, of the firm opinion that the case
of the petitioner was for claiming exemption as in-service candidate. It is
in that context, now we proceed to decide the question raised before us.
The question before us is whether her service at Swami
Sarwa Nand Giri Regional Center, Hoshiarpur as Assistant Professor
would be said to be "in-service" for the purpose of appointment in the
Haryana Superior Judicial Services?
The question is no more re integra and has been answered
categorically in the case of Deepak Aggarwal versus Keshav Kaushik
and others, 2013 (2) SCC (Cri) 978. Instead of expressing in our own
words, it would be appropriate to quote the relevant paragraphs from the
said judgement, which we do hereunder:-
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"Explaining the meaning of the expression, "the
service", this is what this Court said in para 20 of the
Report in Chandra Mohan.
"Though Section 254(1) of the said Act was couched
in general terms similar to those contained in Article
233(1) of the Constitution, the said rules did not
empower him to appoint to the reserved post of
District Judge a person belonging to a service other
than the judicial service. Till India attained
Independence, the position was that District Judges
were appointed by the Governor from three sources,
namely, (i) the Indian Civil Service, (ii) the Provincial
Judicial Service, and (iii) the Bar. But after India
attained Independence in 1947, recruitment to the
Indian Civil Service was discontinued and the
Government of India decided that the members of the
newly created Indian Administrative Service would
not be given judicial posts. Thereafter District Judges
have been recruited only from either the judicial
service or from the Bar. There was no case of a
member of the executive having been promoted as a
District Judge. If that was the factual position at the
time the Constitution came into force, it is
unreasonable to attribute to the makers of the
Constitution, who had so carefully provided for the
independence of the judiciary, an intention to destroy
the same by an indirect method. What can be more
deleterious to the good name of the judiciary than to
permit at the level of District Judges, recruitment from
the executive departments? Therefore, the history of
the services also supports our construction that the
expression 'the service' in Article 233(2) can only
mean the judicial service."
44. The Constitution Bench in Chandra Mohan has thus
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clearly held that the expression "the service" in Article 233
(2) means the judicial service.
..........................
46. From the above, we have no doubt that the expression,
"the service" in Article 233(2) means the "judicial service".
Other members of the service of the Union or State are as it
is excluded because Article 233 contemplates only two
sources from which the District Judges can be appointed.
These sources are: (i) judicial service; and (ii) the
advocate/pleader or in other words from the Bar. The
District Judges can, thus, be appointed from no source other
than judicial service or from amongst advocates. Article 233
(2) excludes appointment of District Judges from the judicial
service and restricts eligibility of appointment as District
Judges from amongst the advocates or pleaders having
practice of not less than seven years and who have been
recommended by the High Court as such."
In the light of the ratio decidendi as laid down by the Apex
Court, we have no manner of doubt that the petitioner cannot claim to
fall in the category of in-service candidate for claiming exemption.
Testing the second submission regarding completion of 7 years as an
Advocate in practice that the petitioner had completed 7 years of practice
upto September 2010 and therefore, the same should be counted for the
purpose in question, we find, it unacceptable. Admittedly, on the date
preceding filing of the application, the petitioner had legal practice from
December 2014 and therefore, she had completed the period of only one
year preceding the date of application. The submission that 7 years
standing at in any time in the past should be considered as sufficient has
been categorically answered by the Apex Court in Paragraph-88 of the
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judgment in Deepak Aggarwal's case (supra), which we quote
hereunder:-
"88. 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."
We thus, find that there is no merit in the present petition. In
the result, we make the following order:-
ORDER
(i) CWP No.22062 of 2017 stands dismissed.
(A.B. CHAUDHARI) JUDGE (INDERJIT SINGH) JUDGE February 26, 2018 mahavir Whether speaking/ reasoned: Yes/No Whether Reportable: Yes/No 9 of 9 ::: Downloaded on - 03-03-2018 23:16:40 :::