Point of Law: In the cases where such in-service incumbents have been appointed by way of direct recruitment from bar as we find no merit in the petitions and due to dismissal of the writ petitions filed by the judicial officers, as sequel no fruits can be ripened on the basis of selection without eligibility, they cannot continue as District Judges.

JUDGMENT :

1. Heard Sri Vijay Tripathi, learned counsel for the petitioner and Sri Rahul Agarwal, learned counsel for the High Court-respondents.

2. The petitioner has prayed for the following reliefs:

"I. issue a writ, order or direction in the nature of certiorari quashing the impugned rejection order dated 22/10/2021 (Annexure No.1 to this writ petition).

II. issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to allow the petitioner to participate in selection process of U.P. Higher Judiciary Services, 2020.

III. to issue any other writ, order or direction which this Hon'ble court may deem fit and proper in the facts and circumstances of the case."

3. The facts in nutshell for our purpose are that the petitioner applied for being appointed as a Judicial Officer in the U.P. State Higher Judicial Services, the clinching aspect which is under challenge is that the High Court after the petitioner had cleared the preliminary exam, she was not permitted to appear for final exams, on the ground that on interpretation of the rules and placing reliance on the judgment of the Apex Court in Deepak Aggrawal v. Keshav Kaushik and others, (2013) 5 SCC 277 the committee found that the petitioner does not have continuous practice for seven years on date of exam/filling form. The High Court on its administrative side conveyed to the petitioner that she was not qualified as per rules.

3. Shri Jitendra Kumar holding brief of the counsel appearing on behalf of petitioner has contended that the petitioner has passed preliminary exams and is practicing as a public prosecutor since 2019. Learned counsel for petitioner also places reliance on the judgment of the Apex Court in Deepak Aggrawal (supra).

4. At this juncture, it would be relevant for us to verbatim refer to paragraphs no.101 and 102, of decision titled Deepak Aggawal (Supra) which we verbatim reproduce as under:

"101. The Division Bench has in respect of all the five private appellants – Assistant District Attorney, Public Prosecutor and Deputy Advocate General – recorded undisputed factual position that they were appearing on behalf of their respective States primarily in criminal/civil cases and their appointments were basically under the C.P.C. or Cr.P.C. That means their job has been to conduct cases on behalf of the State Government/C.B.I. in courts. Each one of them continued to be enrolled with the respective State Bar Council. In view of this factual position and the legal position that we have discussed above, can it be said that these appellants were ineligible for appointment to the office of Additional District and Sessions Judge? Our answer is in the negative. The Division Bench committed two fundamental errors, first, the Division Bench erred in holding that since these appellants were in full-time employment of the State Government/Central Government, they ceased to be ‘advocate’ under the 1961 Act and the BCI Rules, and second, that being a member of service, the first essential requirement under Article 233(2) of the Constitution that such person should not be in any service under the Union or the State was attracted. In our view, none of the five private appellants, on their appointment as Assistant District Attorney/Public Prosecutor/Deputy Advocate General, ceased to be ‘advocate’ and since each one of them continued to be ‘advocate’, they cannot be considered to be in the service of the Union or the State within the meaning of Article 233(2). The view of the Division Bench is clearly erroneous and cannot be sustained.

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 u