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IN THE HIGH COURT OF JUDICATURE AT PATNA
Shivaji Pandey, Partha Sarthy, JJ.
Sunil Kumar Verma – Petitioner
Versus
The State of Bihar through the Chief Secretary and ors. – Respondents
Civil Writ Jurisdiction Case No.8306 of 2020
Decided On : 08-04-2021
Constitution of India – Article 233(2) – Termination from post of Additional District and Sessions Judge – There are two source of appointment, one from Bar having experience of 7 years and another source is from service – A person in service in Union or State, will not be eligible for appointment in District Judge from stream of Advocate – That itself negates right of a person who is in judicial service would be eligible for consideration for appointment as District Judge (Direct Entry) from another stream which is meant for Advocate – Service under Article 233 of Constitution it has to be construed those who are discharging duty from a judicial service, it cannot be extended to those officers who are discharging judicial functions in executive side as judicial officer has to be construed who are member of judicial service of State. (Para 16, 18 and 36)
Interpretation of Statute – Fundamental rule of interpretation is same whether one construes constitutional provisions or normal statutory provision enacted by Parliament or State Legislature, that Court will have to find out express intention from words of Constitution or Act, as the case may be – But, if, two constructions are possible then Court must adopt that which will ensure smooth and harmonious working of Constitution and eschew other which will lead to absurdity or give rise to practical inconvenience or make well established provisions of existing law nugatory. (Para 27)
Service Law – Termination – From post of Additional District and Sessions Judge – Those who are in stream of Advocate, have to remain in same stream and Judicial Officers who opted to be appointed in Subordinate Service, have to claim to be appointed by way of promotion and they cannot stake claim to be taken into consideration past experience as that experience will not make him eligible for consideration for appointment in direct recruitment and he has to remain as an Advocate with experience of 7 years not only at the time of cut-off date but also at the stage of his appointment – In present case, petitioner before joining subordinate service i.e., on cut-off date, he filled up form, had mentioned experience of 7 years but, thereafter, he was selected in Uttar Pradesh Judicial Service, he joined and continued to remain in service – At the same time, he appeared in examination against advertisement published for direct recruitment from Bar as a District Judge in which he was finally selected but, on the date of result, he was in judicial service of State of Uttar Pradesh – Later on, he tendered his resignation which was accepted and he joined – He was in-service candidate though at the time of cut-off date, he was an Advocate but, at the time of appointment, he was not an advocate – So, his claim that he has rightly been appointed as a District Judge Direct Entry Level is not sustainable – When law is very clear right from beginning, petitioner cannot be allowed to stake claim of being appointed as a District Judge from stream of Advocate and it has to be confined to those Advocates who continues to be an Advocate all through and also at the time of his appointment – Writ Application dismissed. (Paras 36, 41 and 42)
JUDGMENT :
SHIVAJI PANDEY, J.
1. Heard learned counsel for the parties.
2. The petitioner was the Judicial Officer, has challenged the letter no. 23842 dated 18.5.2020 and letter no. 24973 dated 1.6.2020 issued by the Patna High Court (this Court) by which a show-cause notice was issued to the petitioner in view of the judgment of Hon’ble Apex Court passed in the case of Dheeraj Mor Vs. High Court of Delhi along with Prem Shankar & Ors. Vs. High Court of Patna & Anr. reported in (2020) 7 SCC 401 as to why his services from the post of Additional District and Sessions Judge be not terminated assigning reason that the petitioner was not a practicing advocate on the date of preliminary test, main test, interview and declaration of final result as well as on the date of his appointment as an Additional District and Sessions Judge and, at later stage, the petitioner filed interlocutory application bearing I.A. No. 1/2020 by which he has sought amendment of the writ petition in order to bring new developmental fact as has been informed vide letter dated 22.9.2020 that the response/submission of the petitioner has been rejected by this Court and further I.A. No. 2/2020 has been filed by which he has made a prayer for grant of interim relief that during pendency of this writ application, no order of termination be passed against the petitioner and again I.A. No. 3/2020 has been filed by which a prayer has been made for quashing the notification no. 7 dated 17.12.2020 along with letter dated 4.1.2021 by which the petitioner has been terminated from service and communicated at his place of posting at Begusarai respectively.
3. The short fact of this case is that the petitioner has enrolled himself in Bar Council of Uttar Pradesh vide Enrollment No. 7938 of 07 dated 5.12.2007 and joined the State High Court Bar Association, Allahabad on 5.12.2007 and remained in practice till 15.1.2017. During that period, he was appearing in various competitive examination such as PCS-J and District Judge (Entry Level) Direct from Bar Exams at different States. This High Court had issued an advertisement for recruitment of suitable candidates to the post of District Judge (Entry Level), Direct From Bar Exam2016 on its website dated 22.8.2016 notifying 98 vacancies as on 31.3.2017. One of the terms and conditions was mentioned therein that the candidates must possess 7 years practice including his appearance at least in 24 cases per annum preceding three years on the last date of receipt of the application as specified in the advertisement and further condition was provided that the candidate must have completed 35 years of age and who has not completed the 50 years as on 1.1.2016, shall be eligible for consideration. The cut off date for the purpose of consideration of eligibility of the application was fixed as on 16.9.2016. In pursuance of the advertisement, the petitioner applied for the said post on 31.8.2016 before the last date i.e. 16.9.2016. While filling up the form, he has also obtained experience certificate from the Registrar, High Court showing his professional experience of seven years on or before the cut off date. It has to be noted that the petitioner had also applied in U.P. Judicial Services (Junior Division), where he was selected on 16.1.2017 and, accordingly, he joined the judicial services (Junior Division) in the state of Uttar Pradesh and, as per petitioner, on or before the cut off date, he was not in any service either judicial or otherwise. Further that the condition does not stipulate in the advertisement that candidate who has joined judicial service or in any services later on would be made ineligible for the consideration of the said post. The petitioner succeeded in preliminary examination as well as in the main examination. After the main examination, this Court published notice in its website dated 9.2.2018, giving liberty to the candidates to remove defects and discrepancies in the application form. In the notice, it has
An advocate ceases to practice when engaged in full-time employment, rendering them ineligible for judicial recruitment under Article 233(2) of the Constitution.
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The main legal point established in the judgment is the requirement of continuous practice as an advocate immediately preceding the date of the application for appointment as a District Judge.
The requirement of continuous practice for seven years under Rule 9(2) of the Delhi Higher Judiciary Services Rules aligns with Article 233(2) of the Constitution, validating the rule's constitutiona....
The main legal point established is the interpretation of eligibility criteria for the post of District Judge (Entry Level) under Article 233 of the Constitution of India and relevant rules, emphasiz....
Point of Law : Judicial officer, regardless of her or his previous experience as an Advocate with seven years' practice cannot apply, and compete for appointment to any vacancy in post of District Ju....
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