The period of service as an Assistant Public Prosecutor cannot be counted towards the seven years' standing requirement for appearing in the U. P. Higher Judicial Service Examination.

( 1 ) SRI Akhilesh Kumar Misra, Sri Rajesh Kumar Saxena and Sri Abhimanu Kumar Misra have filed this writ petition under Article 226 of the Constitution of India with the prayer that a writ in the nature of certiorari should issue quashing the orders dated 21-12-1994 issued by the Additional Registrar of this court telling each of the petitioner that their applications for seeking permission to appear in the U. P. Higher Judicial Service Examination has been rejected. Further prayer in the writ petition is that each of the petitioner should be permitted to appear in the U. P. Higher Judicial Service Examination scheduled to be held on 7th and 8th of January, 1995.

( 2 ) SRI K. N. Tripathi, learned Senior Advocate assisted by Sri Rakesh Kumar, Advocate has been heard at sufficient length in support of this writ petition. Since notice of this writ petition was already given to the opposite parties, the Additional Advocate General Sri Rakesh Dwivedi assisted by Sri R. I. Saxena, learned Standing Counsel have put appearance on behalf of the opposite parties and have argued at length for dismissing the writ petition.

( 3 ) SINCE none of the facts and questions of law are in dispute, this writ petition is finally decided at the admission stage.

( 4 ) IN the State of U. P. there has come to exist a service known as U. P. Higher Judicial Service. For recruitment to the said service, U. P. Higher Judicial Service Rules 1975 have been framed (for short thereinafter referred to as the "rules" ). Under Rule 5 of the rules, it is provided that there would be two sources of recruitment. For a ready reference the said rule should be quoted:-"5. Sources of recruitment.- The recruitment shall be made - (a) by direct recruitment of pleaders and advocates of not less than seven years standing on the first day of January next following the year in which the notice inviting applications is published; (b) by promotion, of confirmed members of the Uttar Pradesh Nyayaik Sewa (hereinafter referred to as the Nyayik Sewa), who have put in not less than seven years service to be computed on the first day of January next following the year in which the notice inviting applications is published: provided that for so long as suitable officers are available from out of the dying cadre of the Judicial Magistrates, confirmed officers, who have put in not less than seven years service to be computed as aforesaid shall be eligible for appointment as Additional Sessions Judge in the service. Explanation.- When a person has been both a pleader and an advocate his total standing in both the capacities shall be taken into account in computing the period of seven years under clause (a ).

( 5 ) THE emphasis and thrust of the argument on behalf of the petitioners is upon seven years standing. It may be mentioned here that they want to get the benefit of "seven years standing" as appearing in clause (a) of the said rule.

( 6 ) THE petitioner Sri Akhilesh Kumar Misra was admittedly enrolled as an advocate on 28th of April, 1982. After having successfully competed in the examination conducted by the Public Service Commission became an Assistant Prosecuting Officer in the year 1982, but he joined the said post on 12-1-1987.

( 7 ) THE petitioner No. 2 Rajesh Kumar Saxena passed the law examination in the year 1980, Likewise, he was appointed Assistant Prosecuting Officer on 19-1-1985. Similarly, Sri Abhimanu Kumar Misra did his law examination and was also appointed as Assistant Prosecuting Officer on 19-1-1985. The result of mentioning these dates is that none of the petitioner can be said to have been a member of the Bar for a continuous period of seven years if the period since they have been working as Assistant Prosecuting Officer is excluded. Therefore, Sri K. N. Tripathi vehemently argued looking at the corresponding provisions in the Advocates Act and the rules framed by the Bar Council of India read with Sections 24 and 25 of the Criminal Procedure C