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Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021 This Court, before arriving to concrete conclusion, has to examine the judgments cited by the parties.

This complex issue has to be decided in the proper and fair interpretation of the Constitution as has been submitted by the counsel in what manner Article 233(2) of the Constitution is to be construed as it exposits that the minimum qualification from the stream of Bar quota is 7 years of practice which is essential qualification for consideration for direct recruit but, the next question is vital in the sense that in Article 233 of the Constitution the word has been used in present perfect continuous tense, its effect and its amplitude in the background whether the person should continue to be advocate on the day of filing of the application and also at the time of appearance in the different stages of examination including at the time of his appointment.

Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021 In the case of Deepak Agrawal Vs. Keshaw Kaushik & Ors. reported in (2013) 5 SCC 277, the Hon'ble Apex Court was considering the meaning of expression "the service" in Article 233(2) of the Constitution. The questions were (1) what is the meaning of the expression "the service" in Article 233(2) of the Constitution of India?, (2) what is meant by "advocate" or "pleader" under Article 233(2)? and (3) whether a District Attorney/Additional District Attorney/Public Prosecutor/Assistant Public Prosecutor/Assistant Advocate General, who is full time employee of the Government and governed and regulated by the statutory rules of the State and is appointed through direct recruitment by the Public Service Commission, is eligible for appointment to the post of District Judge under Article 233(2) of the Constitution? In this background, the Hon'ble Apex Court has arrived to a conclusion that if Assistant District Attorney/Public Prosecutor/Deputy Advocate General are conducting the cases for and on behalf of the State Government in court and each of them continue to be enrolled in the respective State Bar Council, they will be treated to be an advocate in terms of Article 233(2) of the Constitution and such person will not fall in the category under service of the Union or the State. While considering the expression "if he has been for not less than seven years an advocate", it has Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021 been held that the terms is couched with "present perfect continuous tense" which is used for a position which began at some time in the past and is still continuing. In that context, paragraph no.102, being relevant is quoted herein below:-

"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."