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IN THE HIGH COURT OF DELHI AT NEW DELHI
Najmi Waziri, Vikas Mahajan, JJ.
Ashish Rastogi – Appellant
Versus
Honble High Court of Delhi & Anr. – Respondents
W.P.(C) 15705 of 2022 & CM APPL. 48879 of 2022
Decided On : 17-03-2023
Advocate - Delhi Higher Judicial Services Examination - Advocates Act, 1961, Rules 9(2) of DHJS Rules, 1970 - The court discussed the petitioner's eligibility as an advocate for appointment to the Delhi Higher Judicial Services and the interpretation of Rules 9(2) of DHJS Rules, 1970, and relevant provisions of the Advocates Act, 1961. The court emphasized the petitioner's continuous practice as an advocate and the certification by the Bar Council of Uttar Pradesh, ultimately setting aside the rejection of the petitioner's candidature.
Fact of the Case:
The petitioner sought setting aside of the Final Result Notice of the Delhi Higher Judicial Services Examination, 2022, only insofar as it rejects the candidature of the petitioner for appointment to the Delhi Higher Judicial Services. The main issue was whether the petitioner is covered by the expression 'continuously practicing advocate for not less than 7 years preceding receipt of applications' which is a mandatory qualification for selection to the DHJS. The petitioner contended that the rejection of his candidature was baseless, arbitrary, and illegal.
Finding of the Court:
The court analyzed the petitioner's employment status, compliance with instructions, and certification by the Bar Council of Uttar Pradesh. It found that the petitioner's duties were predominantly of an advocate and that he fulfilled the requirement of 'continuously practicing as an advocate for not less than 7 years on the last date of receipt of applications'. The court set aside the rejection of the petitioner's candidature and directed the modification of the Final Result Notice to include the petitioner in the list of successful candidates.
Issues: The main issue was whether the petitioner's employment as a Law Officer with SAIL qualified as 'continuously practicing advocate' for selection to the DHJS. The court also addressed the petitioner's compliance with instructions and the interpretation of relevant provisions of the Advocates Act, 1961 and DHJS Rules, 1970.
Ratio Decidendi: The court emphasized the petitioner's continuous practice as an advocate and the certification by the Bar Council of Uttar Pradesh, ultimately setting aside the rejection of the petitioner's candidature. It held that the petitioner fulfilled the requirement of 'continuously practicing as an advocate for not less than 7 years on the last date of receipt of applications'.
Final Decision: The rejection of the petitioner's candidature as notified in the impugned Final Result Notice was set aside. R-1 was directed to modify the Final Result Notice by including the petitioner in the list of successful candidates. The amended Final Merit List/Result was to be published within four weeks of receipt of the order.
JUDGMENT
Najmi Waziri, J. This writ petition seeks the setting aside of the Final Result Notice of the Delhi Higher Judicial Services Examination, 2022 (`Impugned Notice') dated 10.11.2022, only insofar as it rejects the candidature of the petitioner for appointment to the Delhi Higher Judicial Services (`DHJS'). The main issue to be determined is whether the petitioner is covered by the expression "continuously practicing advocate for not less than 7 years preceding receipt of applications" which is a mandatory qualification for selection to the DHJS.
2. There is no dispute of the fact that the petitioner has been working as a Law Officer with the Steel Authority of India (`SAIL') since 2010. He earned a degree in B.A.LLB. (Hons.) from National Academy of Legal Studies and Research (NALSAR) University of Law, Hyderabad in 2010. He got enrolled with the Bar Council of Uttar Pradesh on 23.05.2010. In June 2010, SAIL issued him a letter of appointment and in July 2010, he started working as Jr. Manager (Law). He says that he started appearing, acting and/or pleading on behalf of SAIL before various courts, tribunals and quasi-judicial fora. He cleared the All-India Bar Examination in March, 2011 and was awarded a `Certificate of Practice' on 19.03.2011 by the Bar Council of India.
3. In response to an advertisement/notification dated 26.12.2019 issued by R-1 for direct recruitment into the Delhi Higher Judicial Services, the petitioner first cleared the eponymous Preliminary Examination, 2019, but was not successful in the Main Examination (Written), 2019.
4. After the Delhi Higher Judicial Services Rules, 1970 were amended on 08.02.2022 an advertisement was issued by R-1 on 23.02.2022 for filling up 45 vacancies by way of Direct Recruitment in the DHJS. In furtherance of the same, R-1 also issued `Instructions' on 24.02.2022 to the effect that if a candidate, who is employed in Government Service, Public Sector Undertaking (`PSU') or a Bank or in Government Service and intends to appear for the aforesaid examination and if selected for viva-voce, she/he must inform her/his parent office apropos the same and must get a `No Objection Certificate' from the employer.
5. In this round of recruitment exercise, the petitioner cleared the DHJS Preliminary Examination as well as the Main Examination (Written), 2022. He was amongst the 44 candidates shortlisted for the viva-voce interview. As per the "Final Result of Candidates in order of Merit (Category Wise) on the basis of their performance in Mains Examination and Viva-Voce" declared on 10.11.2022, the petitioner scored 623.5 marks out of a total of 1000 marks. Logically, he ought to have been ranked 17th in the list of meritorious candidates but it was not so done. Instead his candidature was shown as rejected for the reason mentioned in the Final Result:
"NOTE:
*** The candidates do not have continuous practice of 7 years during the period immediately preceding the last date of applications as required under Rule 9(2) of DHJS Rules, 1970 and, therefore, their candidatures have been rejected."
6. The petitioner says that in his on-line application he had fully disclosed his employment status with SAIL and had complied with Instruction Nos. 4 and 5 (x) issued by R-1, which require that:
"...4. A candidate in Government Service or working in a Public Sector Undertaking or in a Bank whether in a permanent or temporary capacity, must inform his/her parent office that he/she has applied for Delhi Higher Judicial Service Examination 2022. Such candidate, if selected for Viva-Voce, shall be required to produce No Objection Certificate from his/her employer at the time of Viva-Voce.
5. A candidate, if declared successful in the Mains Examination (Written) must send one set of self attested copies of the following documents to the Joint Registrar (Exams-DHJS & DJS), High Court of Delhi, within five days of the declaration of the result accompanied by a covering letter indicating his/her Rol
The central legal point established in the judgment is the interpretation of the requirement of 'continuously practicing advocate for not less than 7 years' for selection to the Delhi Higher Judicial....
An advocate ceases to practice when engaged in full-time employment, rendering them ineligible for judicial recruitment under Article 233(2) of the Constitution.
The eligibility criterion of 'having been continuously practicing as an Advocate for not less than seven years' as per Rule 9(2) of the DHJS Rules does not require an inquiry into the specific functi....
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 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.
Rule 7 of the Bar Council, prohibiting former judicial officers from practicing for two years in prior jurisdiction, is a reasonable restriction in public interest under Article 19(1)(g) of the Const....
Eligibility criteria for public service roles must be strictly adhered to, requiring ongoing active legal practice as defined in notifications and Bar Council rules.
The demand for court orders by the State Govt. from selected candidates for the posts of ADAs and DDAs was not sustainable in law, arbitrary, and unjustified.
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