High Court of Judicature at Allahabad
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Sanjay Agrawal v. State Of U.P. And Others - WRIT - A No. 20016 of 2007  RD-AH 10610 (15 June 2007)
Reserved on 25.5.2007
Delivered on 15.6.2007
1. Civil Misc. Writ Petition No. 20016 of 2007
Sanjay Agarwal Vs. State of U.P. and others.
2. Civil Misc. Writ Petition No. 22132 of 2007
Ram Kinkar Shukla and 4 others Vs. State of U.P. and others
3. Civil Misc. Writ Petition No. 21982 of 2007
Smt. Sudesh Vs. State of U.P. and others
4. Civil Misc. Writ Petition No. 22356 of 2007
Narendra Lal Gupta Vs. Hon'ble High Court of Judicature at Allahabad through Registrar General, Allahabad and another.
5. Civil Misc. Writ Petition No. 22485 of 2007
Smt. Sarla Gupta, Advocate Vs. State of U.P. and others
6. Civil Misc. Writ Petition No. 22841 of 2007
Rajeev Sharma Vs. Hon'ble High Court of Judicature at Allahabad through Registrar General and others
7. Civil Misc. Writ Petition No. 20625 of 2007
Hriday Narayan Mishra Vs. State of U.P. and others
8. Civil Misc. Writ Petition No. 21903 of 2007
Sharad Chandra Singh and another Vs. His
Excellency, The Governor, State of U.P. and others
9. Civil Misc. Writ Petition No. 21584 of 2007
Bhanu Pratap Pandey and 42 others Vs. State of U.P. and others.
10. Civil Misc. Writ Petition No. 22122 of 2007
Ram Acharaj Chaturvedi and 4 others Vs. The
Registrar General, High Court of Judicature at Allahabad
11. Civil Misc. Writ Petition No. 23441 of 2007
Subhash Chandra Maurya Vs. State of U.P. and others
12. Civil Misc. Writ Petition No. 23793 of 2007
Ajay Kumar Tripathi and six others Vs. The Registrar
General, High Court of Judicature at Allahabad and others.
13. Civil Misc. Writ Petition No. 21570 of 2007
Subhash Chandra Tiwari and two others Vs. Registrar General High Court, Allahabad.
14. Civil Misc. Writ Petition No. 22105 of 2007
Awadhesh Kumar Sarof and 2 others vs. State of U.P. and others
15. Civil Misc. Writ Petition No. 21565 of 2007
Sharad Kumar Srivastava and 80 others Vs. The
Registrar General, High Court, Allahabad and another
16. Civil Misc. Writ Petition No. 25356 of 2007
Ashok Kumar Tripathi Vs. The Registrar General, High Court, Allahabad
Hon'ble Anjani Kumar, J.
Hon'ble Sudhir Agarwal, J.
(1) All these writ petitions arise out of advertisement dated 31.3.2007 published by Registrar General, Allahabad High Court for direct recruitment in U.P. Higher Judicial Service 2007. Since pleadings in most of these cases have been exchanged, as requested by learned counsel for the parties, the writ petitions have been heard at the stage of admission under the Rules of the Court and are being finally decided by this common judgment.
(2) In this bunch of writ petitions, there are two sets of cases. The first set of the writ petitions assail the validity of Rule 5(a) (old) and now 5(c), and Rule 12 of U.P. Higher Judicial Service Rules, 1975 (hereinafter referred to as "1975 Rules") while the
other set of cases have been filed by persons who are presently working as Assistant Public Prosecutors/Assistant Prosecuting Officers (for short "APP/APOs"), seeking a writ of mandamus directing the respondents to allow them to appear in the aforesaid selection.
(3) Before coming to the rival submissions, it would be appropriate to have a bird eye view of the brief facts in various writ petitions.
Ist Set of Petitions
Writ petition No. 20016 of 2007 (which is treated as leading case in this bunch) has been filed by Sanjay Agarwal assailing the validity of Rule 5(a), 5(c) and 12 of 1975 Rules as violative of Articles 14, 16, and 233(2) of the Constitution of India. It also challenges the validity of clauses (2) and (3) under the instructions of the advertisement dated 31.3.2007 providing cut-off date. He has also sought a writ of mandamus commanding the respondents to accept his application treating him eligible to appear in U.P. Higher Judicial Service Examinations 2007 (hereinafter referred to as HJS Examination 2007).
Writ petition No.22132 of 2007 has been filed by five petitioners, seeking a writ of certiorari quashing advertisement dated 31.3.2007 to the extent it provides 1st January 2008 as cut-off date for the purpose of age and experience as an Advocate and has also challenged vires of Rule 12 of 1975 Rules as violative of Article 233 of the Constitution of India read with Rules 8 and 22 of 1975 Rules.
Writ petition no.21982 of 2007 has been filed by sole petitioner Smt. Sudesh seeking a writ of mandamus commanding the respondents to treat her within prescribed age limit and permit her to appear in the aforesaid examination after relaxing upper age limit.
Writ petition no.22356 of 2007 has been filed by Narendra Lal Gupta, assailing vires of Rules 5(a) and 12 of 1975 Rules being ultra vires of Article 233(2) of the Constitution and has also sought a writ of certiorari quashing clauses (2) and (3) of the advertisement dated 31.3.2007. It has also sought a writ of mandamus commanding the respondents to permit him to appear in the Examination to be held pursuant to the aforesaid advertisement.
Civil Misc. writ petition no. 22485 of 2007 has been filed by Smt. Sarla Gupta, Advocate challenging the vires of Rule 5(c) and Rule 12 of 1975 Rules as well as Clauses (2) and (3) of the instructions provided in the advertisement dated 31.3.2007. She has also sought a writ of mandamus commanding respondent no.2 to amend the cut-off date regarding upper age limit and to accept the application of the petitioner permitting her to appear in the aforesaid selection treating her as eligible candidate.
Civil Misc. writ petition no. 22841 of 2007 has been filed by Rajeev Sharma, challenging the advertisement dated 31.3.2007 to the extent it excludes the persons who were eligible at the time recruitment was announced and further seeking a writ of mandamus commanding the respondents to allow the petitioner to appear in the aforesaid examination.
Civil Misc. Writ Petition No. 20625 of 2007 has been filed by Hriday Narayan Mishra, challenging the validity of Rule 5(a) and 12 of 1975 Rules as well as clauses (2) and (3) of the instructions of advertisement dated 31.3.2007.
Civil Misc. Writ Petition No. 21903 of 2007 has been filed by Sharad Chandra Singh and and another seeking a writ of certiorari quashing advertisement dated 31.3.2007 to the extent of eligibility clause providing cut-off date as 1.1.2008 for the purpose of age and experience as an Advocate. It has also challenged the validity of Rule 12 of 1975 Rules, seeking further a writ of mandamus commanding the respondents to allow the petitioners to appear in the aforesaid selection treating them eligible.
IInd Set of Petitions
Writ petition no. 21584 of 2007 has been filed by Bhanu Pratap Pandey and 42 others who are working as APO/APP in various districts of the State of U.P., assailing the Circular/notice dated 26.04.2007, issued by Registrar General of this Court, respondent no.3 communicating the various District Judges not to forward applications of APP/APOs since they are not eligible to appear in HJS Examinations 2007. They have also sought a writ of mandamus commanding the District Judges concerned to forward applications of the petitioners for direct recruitment and permit them to appear in the aforesaid selection.
Other writ petitions filed by APP/APOs seeking almost same relief as in writ petition no. 21584 of 2007 are 22122 of 2007, 23441 of 2007, 23793 of 2007, 21570 of 2007, 22105 of 2007.
In Writ Petition No. 21565 of 2007 the petitioners have assailed the Circular dated 26.4.2007, issued by Registrar General of this Court and has also assailed the validity of notification dated 9th January 2007 whereby 1975 Rules were amended.
In Writ Petition No. 25356 of 2007 the petitioner has challenged the circular dated 26.4.2007 issued by Registrar General of this Court and also the validity of notification dated 9.1.2007 amending 1975 Rules, as ultra vires being violative of Article 233(2) of the Constitution. He has also sought a writ of mandamus commanding the respondents to permit him to appear in the aforesaid selection treating him eligible in the aforesaid selection.
(4) On behalf of the respondents the State of U.P. has not filed any counter affidavit but has adopted the stand and arguments of the High Court since the selection in question is being conducted by High Court of Judicature at Allahabad under 1975 Rules. On behalf of the High Court and Registrar General, counter affidavit has been filed in most of the cases, facts whereof are common. Counter affidavit in similar matters have been read interchangeably with the consent of learned counsels appearing for the petitioners. The facts in all these matters are not much in dispute and in brief may be narrated as under.
(5) In the State of U.P. recruitment to Higher Judicial Service is governed by 1975 Rules having been framed under proviso to Article 309 read with Article 233 of the Constitution. Sources of recruitment are; by direct recruitment of pleaders and advocates of not less than 7 years standing; and, by promotion of confirmed members of U.P. Nyayik Sewa who have put in not less than seven years of service. The last direct recruitment commenced on 1.6.2000 by determination of number of officers to be taken by recruitment upto the year 1998. The Court declared 38 vacancies. Advertisement was published on 8.6.2000. The recruitment could be finalized only in April 2005 whereafter vacancies for next recruitment were calculated and approved by the Court on 17.2.2007. 82 vacancies were found available for direct recruitment for which advertisement was published on 31.3.2007.
(6) For the purposes of eligibility of the candidates, clauses (2) and (3) of the advertisement provide as under:
"2. The applicant must be an Advocate of not less than 7 years standing on 1.1.2008.
3. The applicant must have attained the age of 35 years and must not have attained the age of 45 years on the 1st day of January 2008. Provided that the upper age limit shall be higher by three years in case of candidates belonging to Scheduled Castes and Scheduled Tribes and such other 'categories' as may be notified by the Government from time to time."
(7) A number of candidates who have attained 45 years of age prior to 1.1.2008, becoming ineligible pursuant to the aforesaid advertisement, have assailed the same in so far as it provides the cut-off date as 1.1.2008. Since the said cut-off date is consistent with 1975 Rules, the candidates have also assailed the validity of concerned Rules providing the aforesaid cut-off date.
(8) Another set of persons are those who are holding civil post in State of U.P. and working as APP/APOs posted in different districts of the State. They have approached this Court claiming that they are entitled to be considered eligible in the aforesaid examination and cannot be denied right to appear in the said selection merely because they are working as APP/APOs.
(9) Sri Shashi Nandan, Senior Advocate, Sri Pramod Kumar Sinha, Sri R.P. Tiwari, Sri Shailendra, Advocates have advanced their arguments on behalf of the petitioners and other learned counsels appearing for the petitioners in other writ petitions have adopted the arguments of said learned counsels. On behalf of the High Court Sri K.R.Sirohi, Senior Advocate assisted by Srit Amit Sthalekar and Sri Rajeev Gupta, Advocates has advanced his arguments. Most of the learned counsels for the parties have also submitted written arguments.
(10) The petitioners founded their claim on the following submissions.
(a) Right of consideration to a public post is a fundamental right under Article 16(1) of the Constitution on the date when the post is advertised by employer and therefore, providing cut-off date in future making a candidates in presenti or on the date of advertisement ineligible, is per se arbitrary, discriminatory and violative of Articles 14 and 16(1) of the Constitution.
(b) Advertisement was published on 31.3.2007 and last date for submission of forms prescribed therein was 30th April 2007. The minimum and maximum age prescribed is 35 and 45 years respectively and experience as advocate is seven years. The candidates who were thus eligible on the date of advertisement or on the last date of submission of application form cannot be denied right of consideration by fixing an imaginary and artificial date being 1.1.2008 and this amounts to denial of right of consideration to eligible candidates while permitting ineligible candidates to appear in selection and, therefore, is violative of Articles 14 and 16 of the constitution since it results treating unequals as equal.
(c) Rule 12 of 1975 Rules as amended by notification dated 9.1.2007 insofar as it provides the cut-off date as 1st January of the next year in which notice inviting application is published, is per se arbitrary, illegal and violative of Articles 14 and 16 of the Constitution of India inasmuch as, the said cut-off date is artificial and imaginary permitting ineligible candidates to appear in the selection while excluding eligible candidates and denying them right of consideration guaranteed under Article 16 of the constitution.
(d) Rule 8 of 1975 Rules makes it mandatory for the Court to determine number of officers to be taken at the recruitment keeping in view the vacancies then existing and likely to occur in the next two years. The said exercise is to be undertaken by the Court from time to time and not later than three years from the last recruitment meaning thereby, the recruitment once in every three years is mandatory. However, in the case in hand, earlier recruitment of 1998 commenced in 2000 and finalised in 2005. Hence for all practical purposes in the last nine years, there has been only one recruitment though under Rule 8 of 1975 Rules, at least once in every three years selection ought to have been held by the respondents. Inaction on the part of the respondents in holding recruitment as prescribed under Rule 8 has rendered a number of petitioners ineligible in the present selection though they were eligible when the vacancies occurred and if the recruitment would have been held in time as prescribed under Rule 8. Therefore, inaction of the respondents in observance of Rule 8 of 1975 Rules and thereby denying right of consideration to the petitioners by delayed recruitment is arbitrary and illegal. Thus the petitioners are entitled for relaxation in age to the extent of number of years by which recruitment was withheld or deferred or could not be held. Any other view of the matter would make and render the cut-off date with respect to age under Rule 12 of 1975 Rules arbitrary and illegal.
(e) The cut-off date prescribed in the Rules and advertisements in respect of Higher Judicial Service of various other States, namely, Madhya Pradesh, Delhi, is with reference to the year of recruitment in which recruitment process commences and, therefore, prescribing a different cut-off date with respect to age for Higher Judicial Service in the State of U.P. is violative of Articles 14 and 16 of the Constitution of India.
(f) Rule 5(a) of 1975 Rules as it was prior to 9.1.2007 and Rule 5(c) as enacted vide notification dated 9.1.2007 in so far as it provides the cut-off date "1st day of January next following the year in which notice inviting application is published", is illegal and ultra vires of Article 233(2) of the Constitution of India inasmuch as, it permits consideration and recommendation of candidates having less than seven years of practice on the date of consideration though Article 233(2) of the Constitution provides that no person shall be recommended and appointed who has less than 7 years standing as Advocate.
(g) Article 233 provides two sources of recruitment namely one by promotion of the persons who are already in judicial service and secondly by direct recruitment from members of the Bar. The petitioners who are appointed and working as APP/APOs are functioning and working like an Advocate representing State of U.P. in criminal cases before subordinate courts. In view of Section 24 and 25 Cr.P.C. as also the law laid down by Apex Court in Sushma Suri Vs. Government of N.C.T. Delhi, JT 1998 (7) SC 121. The petitioners working as APP/APOs cannot be held ineligible to appear in the aforesaid selection and, therefore, circular dated 26.4.2007 issued by the Registrar, Allahabad High Court communicating all the District Judges not to forward applications of the persons working as APP/APOs since they are holder of civil posts, is illegal and the petitioners are entitled to appear in the aforesaid selection.
(11) On behalf of the High Court, learned Senior Advocate, Sri K.R. Sirohi contended that the cut-off date with respect to age and experience as an Advocate has been prescribed strictly in accordance with the rules. There is no principle of law that cut-off date must always adhere to the date of advertisement or the last date of submission of form provided in the advertisement. It is always open to the competent authority or rule making authority to provide any other date as cut-off date. Since under Rules 5 and 12 of 1975 Rules, the cut-off date prescribed is first day of January following the year in which notice inviting application is published, in the advertisement published on 31.3.2007, the cut-off date is 1.1.2008 and it is neither illegal nor arbitrary nor unjust, per se or otherwise. Placing reliance on the Apex Court's judgments in Dr. Ami Lal Bhat Vs. State of Rajasthan, 1997 (6) SCC 614; Parmeshwar Prasad Vs. Union of India & others; AIR 2001 SC 2982; Union of India and another vs. Sudhir Kumar Jaiswal (1994) 4 SCC 212; Union of India vs. Parameswaram Match Works (1975) 1 SCC 305; D.C. Bhatia and others Vs. Union of India and another, (1995) 1 SCC 104; State of Bihar Vs. Ramjee Prasad (1990) 3 SCC 368; State of Haryana V. Rai Chandra Jain (1997) 5 SCC 167; and Subedar Singh Vs. District Judge, Mirzapur (1997) 1 ESC 655, he contended that cut-off date prescribed under Rules 12 and 5 of 1975 Rules is neither illegal nor arbitrary. He further contended that all the petitioners who have challenged cut-off date, are overage and cannot challenge the same having no locus standi. Validity of cut-off date prescribed in Higher Judicial Service in State of U.P. cannot be assailed on the ground that in other States different provisions have been enacted since service in different States may be governed by different sets of Rules and no parity can be claimed in respect thereto. In support of the aforesaid submission, he placed reliance on the Apex Court judgment State of Himachal Pradesh Vs. P.D. Atri, (1999) 3 SCC 217. Replying to arguments of the petitioners claiming relaxation in age on account of non holding of selection for the last nine years, he contended that recruitment of 2000 could be finalized only in 2005 on account of recruitment having been subject matter of various litigation and also for the reasons beyond the control of the authorities. Elaborating on this aspect, he submitted that the last recruitment of 2000 became subject matter of litigation and ultimately the Apex Court in Sri Kant Tripathi and others Vs. State of U.P. and others, AIR 2001 SC 3757 permitted the Court to finalize the aforesaid selection but in para 38 of the judgment issued certain directions providing that the High Court shall determine number of vacancies available in the relevant year of recruitment in terms of Rule 8 and then allocate percentage of different sources of recruitment under Rule 6 for various years starting from 1988. It also directed since the advertisement of 38 vacancies by direct recruitment is already published, hence appointment of selected candidates may be made against quota of direct recruitment which is to be calculated in accordance with law. The Apex Court further directed that the High Court must take steps to fill vacancies of every recruitment year during the year itself and determine vacancies not only on the basis of actual vacancy, but on the date of such determination, it will also take into account the probable vacancies like to occur due to superannuation in next two years and then apply percentage available for direct recruitment under the rules. Pursuant to the aforesaid direction the Hon'ble Chief Justice constituted a committee consisting of Hon'ble Mr. Justice S.N. Agarwal, Hon'ble Mr. Justice S.R. Alam and Hon'ble Mr. Justice J.C. Gupta to identify and determine vacancies as per the directions of the Apex Court. The aforesaid committee submitted its report on 24.8.2002 which was accepted by the Full Court on 1.2.2004, approving 38 vacancies for recruitment of 2000. However, the Full Court's resolution dated 1.2.2004 was assailed before a Division Bench of this Court (at Lucknow) in Writ Petition No. 316 (S/B) of 2004, U.P. Judicial Services Association Vs. State of U.P. and another. The writ petition was decided finally vide judgement dated 25.8.2004 and allowing the same, direction was issued for redetermination of vacancies as per observations made thereunder. The Court also issued the following direction:-
"Considering this way we feel that opposite parties may go ahead with appointments of direct recruits for 1998, not exceeding their number beyond twenty four. Similarly 334 promotions from Nyayik Sewa/Judicial Officers Service may also be made. These appointments shall however be subject to final determination of vacancies as directed above. The inter-se-seniority of these officers shall be subject to allocation of vacancies of their quota to them. Until redetermination of vacancies in the manner stated the opposite party shall not made any further appointments in recruitment years 1998, other than those permitted above."
(12) The Hon'ble Acting Chief Justice on 29th September, 2004 passed an order to prefer special leave petition against the aforesaid judgment and in the meantime to initiate process for filling of 24 vacancies in HJS as permitted by the Division Bench vide its judgment dated 25.8.2004. In respect to the recruitment by promotion, his Lordship decided to make 334 promotions from Nyayik Sewa as directed in the said judgment. Accordingly, a Special Leave Petition (C) No. 1313 of 2005 was filed and in the meantime vide Full Court's Resolution dated 5.2.2005 recommendation for 24 direct recruitment and 334 promotions sent to the State Government for appointment in U.P. Higher Judicial Service. Consequently, the State Government issued appointment letters. The Apex Court in Special Leave Petition (C) No. 1313 of 2005 passed the following order on 14.2.2005:-
"So far as the prayer for grant of interim relief is concerned, we are not inclined to suspend the operation of any of the directions made by the High Court at this stage. Suffice is to observe that any action taken pursuant to the judgment of the High Court shall be subject to the result of these appeals."
(13) Thereafter for next recruitment, vacancies were determined by a committee consisting of four Hon'ble Judges of this Court and 82 vacancies were determined for direct recruitment under Rule 5(c) and 117+76 by promotion under Rule 5(a) and (b). The aforesaid recommendation of the committee was approved by the Full Court vide resolution dated 17.2.2007 pursuant whereto the aforesaid advertisement dated 31.3.2007 has been issued. Thus neither there is deliberate delay nor arbitrary deferment in holding selection for filling the vacancies of direct recruitment quota in Higher Judicial Service as alleged by the petitioners. Moreover, in the absence of any provision permitting relaxation of Rules, the petitioners cannot claim relaxation in the matter of age and once they are over age, they are ineligible to appear in the aforesaid selection. Reliance is placed on the Apex Court judgment in Malik Mazhar Sultan Vs. U.P.P.S.C., JT 2006 (4) SC 531. With reference to Rule 5(c) of 1975 Rules it is contended that requirement of seven years practice as Advocate is a condition precedent before appointment, therefore, the cut-off date prescribed in the rules cannot be challenged on the anvil of Article 233 (2) unless and until it can be shown that appointment has been made of a person who lacks such eligibility. He further contended that earlier in Malik Mazhar Sultan (Supra) the Apex Court issued certain directions prescribing a time schedule whereunder the recruitment for Higher Judicial Service was to be completed by 31.8.2007 and appointments were to be made within a month thereafter, but during the pendency of these writ petitions before this Court, an application was preferred by the High Court before the Apex Court in Malik Mazhar Sultan (supra) and the order has been modified. The Apex Court has permitted the respondents to make recommendations by 2.1.2008 instead of 31.8.2007 and appointments may be made till 31.3.2008. In the circumstances, it is inconceivable that candidates who have less than seven years experience as an Advocate shall be or may be appointed. Therefore, the argument with respect to Rule 5(c) of 1975 Rules is misleading and has no legs to stand.
(14) Sri Sirohi, also contended that under Article 233 of the Constitution, candidates for direct recruitment from the bar does not become eligible for appointment without recommendation of the High Court in view of the law laid down by the Apex Court in A. Pandurangam Vs. State of Andhra Pradesh, AIR 1975 SC 1922 and State of Bihar and another Vs. Bal Mukund Sah and others, AIR 2000 SC 1296 and therefore, eligibility of persons to appear in the recruitment is to be seen with reference to the date of recommendation by the High Court. Since the Apex Court has permitted the High Court to make recommendation by 2.1.2008, therefore arguments of the petitioners based on hypothetical, premature and unrealistic premise cannot provide a touchstone to consider validity of Rule 5(c) of 1975 Rules.
(15) With respect to the eligibility of those petitioners who are working as APP/APOs, Sri Sirohi contended that Rule 49 of Bar Council of India Rules having been amended vide gazette notification dated 13.10.2001, the law laid down by the Apex Court in Sushma Suri (Supra) has no application since the matter was decided interpreting Rule 49 of Bar Council of India Rules as it stood at that time. After its amendment on 13.10.2001 the situation has substantially changed and now the person who is holding an office or is a full time salaried employee cannot be an Advocate, hence ineligible to appear for direct recruitment in HJS. The source of recruitment is confined to the members of the Bar, namely Pleaders and Advocates. It is also contended that in 1975 Rules though pleaders have been included for direct recruitment but presently no person belonging to the category of pleader would be available for the reason that with enactment of Advocates Act, 1961(hereinafter referred to as "1961 Act") major part of the Legal Practitioner Act 1879 and Bombay Pleaders Act, 1920 which provided for registration of pleaders has been repealed and after 1961 Act only existing pleaders were allowed to practice the profession of law. In 2007, Pleader with the requisite age requirement cannot be conceivably available for recruitment in Higher Judicial Service. For all practical purposes the direct recruitment is presently confined to the advocates as defined under Section 2(1)(a) of the Advocates Act, 1961. A person who is holding a civil post cannot continue to be an advocate under 1961 Act and, therefore, he is not entitled to be considered for direct recruitment to U.P. Higher Judicial Service under 1975 Rules. Reliance is placed on the Apex Court's judgment in State of U.P. Vs. Johri Mal, AIR 2004 SC 3800; All India Judges Association's Vs. Union of India & others (2002) 4 SCC 247 and K.J. John, Assistant Public Prosecutor Vs. State of Kerala, (1990) 4 SCC 191; Division Bench judgments of this Court in Akhilesh Kumar Misra and others Vs. High Court of Judicature at Allahabad and others, 1995 ALJ 513; Deepak Kumar Agarwal Vs. The Registrar High Court and others, 1997 (3) ESC 1795; a Full Bench judgment of Hon'ble Rajasthan High Court in Munni Lal Garg Vs. State of Rajasthan AIR 1970 (Rajasthan) 164 and a judgment of Hon'ble Andhra Pradesh High Court in S. Naganna Vs. Krishan Murthi, AIR 1965 (AP) 320.
(16) We have heard learned counsel for the parties and perused the record including various relevant statutes, rules and written arguments as well as various authorities cites at the Bar. From the rival submissions as noticed above, in our view, broadly the following issues need to be answered:-
1. Whether Rule 12 of 1975 Rules in so far as it prescribes cut-off date "1st of January following the year in which the notice inviting applications is published", is per se arbitrary and discriminatory or otherwise ultra vires of any provision including Article 233 of the Constitution of India.
2. Whether holding of selection at a prescribed interval under Rule 8 of 1975 Rules is mandatory, and, if so, its consequence ?
3. Whether the petitioners are entitled to relaxation in the matter of age for the reason that the selection has not been held periodically as envisaged under Rule 8 of 1975 Rules?
4. Whether Rule 5(a) of 1975 Rules as it stood prior to its amendment and Rule 5(c) of 1975 Rules as enacted by amendment notification dated 9.1.2007 is ultra vires of Article 233 of the Constitution of India in so far as it prescribes seven years practice as Advocate on the 1st day of January in the year in which the notice inviting applications is published.
5. Whether the petitioners working as APP/APOs are eligible to appear in HJS Examination 2007?
(17) Before adverting to the issues referred hereinabove, it would be appropriate to have a glance over the relevant rules applicable in this case. As already noticed above, recruitment is governed by 1975 Rules which were published in the U.P. Gazette dated 5.4.1975. Rule 4 provides strength of service, i.e. 'cadre' and reads as under:-
"4. Strength of the service:- (1) The Service shall consist of a single cadre comprising of the post of :
District and Sessions Judges and;
Additional District and Sessions Judges;
Provided that against a post of Additional District and Sessions Judges member of the Uttar Pradesh Judicial Officers Service may be appointed to exercise the powers of Additional Sessions Judge only as laid down in notification no. 41-13/66-Apptt.-4, dated March12, issued under Article 237 of the Constitution.
(2) The strength of the Service shall be such as may be determined from time to time by the Governor in consultation with the Court.
(3) The permanent strength of the service shall, unless varied by orders passed in this behalf, be as specified in Appendix 'A'.
(4) The Governor may, from time to time, in consultation with the Court leave unfilled or hold in abeyance, any vacant post in the Service without entitling any person to compensation or create from time to time, additional posts, temporary or permanent, as may be found necessary."
(18) Part-III of 1975 Rules deals with 'recruitment' and runs from Rules 5 to 16. Rule 5 provides for "sources of recruitment"; Rule 6 lays down "quota for various sources of recruitment" ; Rule 8 talks of number of appointments to be made and Rules 9 to 15 deal with various kinds of eligibility conditions namely, nationality, knowledge of Hindi, age, character, marital status and physical fitness. Rules 5, 6, 8 and 12 (as initially enacted) are relevant for the present case and are reproduced as under:-
"5. Sources of recruitment- The to the Service shall be made-
(a) by direct recruitments of pleaders and advocates of not less than 7 years standing on the first day of January following the year in which the notice inviting applications is published:
(b) by promotion of confirmed members of the Uttar Pradesh Nyayik 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 application 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/Additional Sessions Judge in the Service.
Explanation.--When a person has been both in 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)."
"6. Quota-- Subject to the provisions of rule 8, the quota for various sources of recruitment shall be
(i) Direct recruit from the Bar......... 15%
(ii) Uttar Pradesh Nyayik Sewa...... 70%
(iii) Uttar Pradesh Judicial Officers..... 15%
(iv) Service (Judicial Magistrates)
(v) Provided that where the number of vacancies to be filled in by any of these sources in accordance with the quota is in fraction, less than half shall be ignored and the fraction of half or more shall ordinarily be counted as one;
(vi) Provided further that when the strength in the cadre of the Judicial Magistrate gradually depleted or is completely exhausted and suitable candidates are not available in requisite numbers or no candidate remains available at all, the shortfall in the number of vacancies required to be filled from amongst Judicial Magistrates and in the long run all the vacancies, shall be filled by promotion from amongst the members of the Nyayik Sewa and their quota shall in due course, became per cent."
"8. Number of appointments to be made--(1) This Court, shall, from time to time, but not later than three years from the last recruitment , fix the number of officers to be taken at the recruitment keeping in view the vacancies then existing and likely to occur in the next two years.
Note: The limitation of three years mentioned in this sub-rule shall not apply to the first recruitment held after the enforcement of these rules.
(2) If at any selection the number of selected direct recruits available for appointment is less than the number of recruits decided by the Court to be taken from that source, the Court may increase correspondingly the number of recruits to be taken by promotion from the Nyayik Sewa;
Provided that the number of vacancies filled in as aforesaid under this sub-rule shall be taken into consideration while fixing the number of vacancies to be allotted to the quota of direct recruits at the next recruitment, and the quota for direct recruits may be raised accordingly; so however, that the percentage of direct recruits in the service does not in any case exceed 15 per cent of the total permanent strength of the service.
Provided further that all the permanent vacancies existing on May 10, 1974 plus 31 temporary posts existing on that date, if and when they are converted into permanent posts, shall be filled by promotion from amongst the members of the Nyayik Sewa; and only the remaining vacancies shall be shared between the three sources under these rules:
Provided also that the number of vacancies equal to 15 per cent of the vacancies referred to in the last preceding proviso shall be worked out for being allocated in future to the Judicial Magistrates in addition to their quota of 15 per cent prescribed in Rule 6, and thereupon, future recruitment (after the promotion from amongst the members of the Nyayik Sewa against vacancies referred to in the last preceding proviso) shall be so arranged that for so long as the additional 15 per cent vacancies worked out as above have not been filled up from out of the Judicial Magistrates, the allocation of vacancies shall be as follows:
(i) 15% by direct recruitment
(ii) 30% from out of the Judicial Magistrates
(iii) 55% from out of the members of the Nyayik Sewa"
"12. Age.--A candidate for direct recruitment must have attained the age of 35 years and must not have attained the age of 45 years on the first day of January next following the year in which the notice inviting applications is published:
Provided that for the first recruitment held after the enforcement of these Rules, the maximum age limit shall be 48 years as on the first day of January next following the year in which the notice inviting application is published."
(19) Part IV of 1975 Rules contains Rules 17 to 19 which deal with procedure of direct recruitment and Part V having only one Rule, namely, Rule 20 deals with the procedure for recruitment by promotion. Part VI pertains to recruitment of Judicial Magistrates. Part VII having Rules 22 to 26 concerns with appointment, promotion, confirmation and seniority and Part VIII deals with other provisions, namely, appointment in the selection grade, special grade, scale of pay, efficiency bar, fixation of pay,etc. We propose to refer other relevant Rules in the aforesaid parts later, at appropriate stage, and are skipping of mentioning more details about the said Rules at this stage.
(20) 1975 Rules as initially enacted underwent certain amendments. The first amendment came vide U.P. Higher Judicial Service (First Amendment) Rules 1977 published in U.P. Gazette dated 26.10.1977, whereby Rules 22,23 and 24 were substituted. The next amendment is U.P. Higher Judicial Service (Second Amendment) Rules 1984 published in U.P. Gazette dated 11.8.19847, substituting Rule 27 and inserting Rule 27A. Then comes U.P. Higher Judicial Service (Third Amendment) Rules 1985 published in U.P. Gazette dated 5.10.1985 whereby, in Rule 12, maximum age limit was reduced from 45 to 42 years. Next is U.P. Higher Judicial Service (Fourth Amendment) Rules 1996 published in U.P. Gazette dated 15.3.1996 whereby Rule 8(2), 22 and 26(1) were substituted. Vide gazette notification dated 9.1.2007, two notifications were published. U.P. Higher Judicial Service (Fifth Amendment) Rules 2006 was notified substituting Rule 7 of 1975 Rules which provides for reservation of posts for scheduled caste etc. The existing appendix 'B' was also connected. The second notification published in U.P. Higher Judicial Service (Sixth Amendment) Rules 2006 (hereinafter referred to as "6th Amendment) whereby Rules 5, 6, 8(2), 12, 18(1), 20 and 21 have been substituted. For the purposes of present case, Rules 5, 6 and 12 as substituted by notification dated 9.1.2007 are relevant and reproduced as under:
"5. The recruitment to the service shall be made--
(a) by promotion from amongst the Civil Judges (Senior Division) on the basis of principle of merit-cum-seniority and passing a suitability test;
(b) by promotion strictly on the basis of merit through limited competitive examination of Civil Judge (Senior Division) having not less than five years qualifying service;
(c) by direct recruitment from amongst the Advocate 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."
"6. Subject to the provisions of rule 8, the quota for various sources of recruitment shall be--
(i) Uttar Pradesh Nyayik Sewa:
(a) from amongst the Civil Judges (Senior Division) on the basis of merit-cum-seniority and passing a suitability test. 50%
(b) On the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years qualifying service. 25%
Provided that in case of there being any shortfall in the vacancies to be filled up on the basis of in cadre competitive examination, the shortfall of 25% reserved for such promotion will be made good by corresponding increase in the quota reserved for promotion of Civil Judge (Senior Division) referred to in clause (i) (a).
(ii) direct recruitment from Bar- 25%.
Provided that where the number of vacancies to be filled in by any of these sources in accordance with the quota is in fraction, less than half shall be ignored and fraction of half or more shall ordinarily be counted as one;"
"12. A candidate for direct recruitment must have attained the age of 35 years and must not have attained the age of 45 years on the first day of January next following the year in which the notice inviting applications is published:
Provided that the upper age limit shall be higher in case of candidates belonging to Scheduled Castes and Scheduled Tribes and such other categories as may be notified by the Government form time to time."
(21) Rule 12 of 1975 Rules, except of making change in the maximum age, in respect to cut-off date has throughout remain same, i.e., " the first day of January next following the year in which notice inviting applications is published." The rule making authority, therefore, in its wisdom has decided that for the purpose of determining age, whether maximum or minimum, cut-off date shall be the first day of the next year with reference to the date of publication of advertisement. Can it be said to be per se arbitrary is one of the moot question required to be answered in this case. Generally speaking, cut-off date does not violate Article 14 simply because one person is distinct from another by a single day or otherwise. It may often happen but that by itself is not arbitrary or discriminatory. Whenever it is within the domain of the prescribed authority to fix certain limit/cut-off date, it can always fix any date or the principle for determining such cut-off date in the manner it finds appropriate. It is a matter of policy and by itself cannot be said to be arbitrary or discriminatory. Choice of a date as a basis for classification is decided by legislature or its delegate and must be accepted unless it is shown to be capricious, whimsical or very wide off the reasonable mark. In Parameswaran Match Works (supra) the Apex Court, in para 10 of the judgment, observed :
".......The choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or a point there must be and there is no mathematical or logical way of fixing it precisely, the decision of the Legislature or its delegate must be accepted unless we can say that it is very wide of the reasonable mark."
(22) Somewhat similar objection with reference to cut-off date was raised in State of Bihar Vs. Ramjee Prasad (supra). Rejecting the same, the Court in para 8 of the judgment held as under:
"8. In the present case as pointed out earlier the past practice was to fix the last date for receipt of applications a month or one and a half months after the date of actual publication of the advertisement. Following the past practice the State Government fixed the last date for receipt of applications as 31st Jan., 1988. Those who had completed the required experience of three years by that date were, therefore, eligible to apply for the posts in question, The respondents and some of the intervenors who were not completing the required experience by that date, therefore, challenged the fixation of the last date as arbitrary and violative of Article 14 of the Constitution. It is obvious that in fixing the last date as 31st January, 1988, the State Government had only followed the past practice and if the High Court's attention had been invited to this fact it would perhaps have refused to interfere since its interference is based on the erroneous belief that the past practice was to fix 30th of June of the relevant year as the last date for receipt of applications. Except for leaning on a past practice the High Court has not assigned any reasons for its choice of the date. As pointed out by this Court the choice of date cannot be dubbed as arbitrary even if no particular reason is forthcoming for the same unless it is shown to be capricious or whimsical or wide off the reasonable mark. The choice of the date for advertising the posts had to depend on several factors, e.g., the number of vacancies in different disciplines, the need to fill up the posts, the availability of candidates, etc. It is not the case of any one that experienced candidates were not available in sufficient numbers on the cut-off date. Merely because the respondents and some others would qualify for appointment if the last date for receipt of applications is shifted from 31 st Jan., 1988 to 30th June, 1988 is no reason for dubbing the earlier date as arbitrary or irrational. We are, therefore, of the opinion that the High Court was clearly in error in striking down the Government's action of fixing the last date for receipt of applications as 31 st January, 1988 as arbitrary.
(23) When a cut-off date is prescribed in a rule and is uniformly applicable, it deals every person in the same manner and cannot be said to be arbitrary only by referring to one or two illustrations based on different facts and circumstances in an individual case which have arisen not on account of universal or uniform application of the Rule but for other reasons. Under 1975 Rules as and when recruitment has been made, cut-off date has always been determined as 1st January of the year following the date of publication of notification or advertisement. There has been no discrimination in such fixation. All have been dealt with in an uniform manner. In considering validity of cut-off date prescribed in the Rules we are not concerned with the wisdom of the rule framing authority for determining cut-off date but its validity. In order to adjudge the cut-off date prescribed in the Rules to be per se arbitrary, it has to be shown that no person in any circumstance could have fixed such cut-off date and it is ex facie, capricious and whimsical on the face of it. Learned counsel for the petitioners, thus could not show that cut-off date prescribed in Rule 12 is outright whimsical or capricious. On the contrary, they submit that prescribing a cut-off date in near future ignoring the date of publication of notification or last date for submission of form, makes it arbitrary and discriminatory. The argument, pre supposes, that, as a universal proposition of law cut-off date for the purposes of eligibility must always have a co-relation with the date of advertisement or the last date of submission of application form. However, we do not find that there is any such exposition of law or principle of universal application. Neither the petitioners could place any authority in support of the aforesaid submission nor do we find anything to support it. On the contrary, we are fortified by various authorities of the Apex Court and this Court that cut-off date in respect to eligibility has to be determined in accordance with Rules and in absence of any such date provided in the Rules, the same may be determined as per the date of advertisement or last date of submission of application forms notified by the competent authority.
(24) In Ashok Kumar Sharma and others Vs. Chander Shekhar and another, (1997) 4 SCC 18 in para 6 it was observed where applications are called for by prescribing a particular date as the last date for filing applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone. The person who acquires prescribed qualification subsequent to such prescribed date cannot be considered at all. Relying on the aforesaid observations subsequently it was contended that cut-off date other than the last date of submission of application forms published in advertisement would be illegal and arbitrary. Rejecting the same the Apex Court in Bhupinderpal Singh and others Vs. State of Punjab and others (2000) 5 SCC 262 while affirming the view taken by the High Court, in para 13 of the judgment, held, that cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut-off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications. However, if there be no such date appointed either in the rules or in advertisement, then eligibility criteria shall be applied by reference to the last date by which the applications have to be received by the competent authority.
(25) In Shankar K. Mandal and others Vs. State of Bihar and others, (2003) 9 SCC 519, the Hon'ble Apex Court in para 5 of the judgment culled out the following principles for determining the cut-off date:
"(1). The cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules.
(2) If there is no cut-off date appointed by the rules then such date shall be as appointed for the purpose in the advertisement calling for applications.
(3) If there is no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the competent authority."
(26) In Dr. Ami Lal Bhat (Supra) validity of cut-off date in a rule which is pari materia to Rule 12 of 1975 Rules came up for consideration before the Apex Court. In that case, Rule 11(1) of Rajasthan Medical Services (Collegiate Branch) Rules 1962 provided maximum age as 35 years on the 1st day of January following the last date fixed for receipt of applications. Considering validity of the Rule insofar as it mentions the words "the first day of January following" in Rule 11(1), the High Court found it arbitrary and unreasonable and accordingly struck it down. Reversing the judgment of the Hon'ble High Court and upholding the Rule, the Apex Court in paragraphs 5 to 7 of the judgment held as under:
"5. This contention in our view is not sustainable. In the first place the fixing of a cut off date for determining the maximum or minimum age prescribed for a post is not per se, arbitrary. Basically, the fixing of a cut off date for determining the maximum or minimum age required for a post, is in the discretion of the Rule-making Authority or the employer as the case may be. One must accept that such a cut off date cannot be fixed with any mathematical precision and in such a manner as would avoid hardship in all conceivable cases. As soon as a cut off date is fixed there will be some persons who fall on the right side of the cut off date and some persons who will fall on the wrong side of the cut off date. That cannot make the cut off date per se arbitrary unless the cut off date is so wide off the mark as to make it wholly unreasonable. This view was expressed by this Court in Union of India v. M/s. Parameshwaran Match Works, AIR 1974 SC 2349 and has been reiterated in subsequent cases. In the case of A. P. Public Service Commission, Hyderabad v. B. Sharat Chandra, (1990) 2 SCC 669 the relevant service rule stipulated that the candidate should not have completed the age of 26 years on the 1st day of July of the year in which the selection is made. Such a cut off date was challenged. This Court considered the various steps required in the process of selection and said,
"when such are the different steps in the process of selection the minimum or maximum age of suitability of a candidate for appointment cannot be allowed to depend upon any fluctuating or uncertain date. If the final stage of selection is delayed and more often it happens for various reasons, the candidates who are eligible on the date of application may find themselves eliminated at the final stage for no fault of theirs. The date to attain the minimum or maximum age must, therefore, be specific and determinate as on a particular date for candidates to apply and for the recruiting agency to scrutinise the applications".
This Court, therefore, held that in order to avoid uncertainty in respect of minimum or maximum age of a candidate, which may arise if such an age is linked to the process of selection which may take an uncertain time, it is desirable that such a cut off date should be with reference to a fixed date. Therefore, fixing an independent cut off date, far from being arbitrary, makes for certainty in determining the maximum age.
6. In the case of Union of India v. Sudhir Kumar Jaiswal (1994) 4 SCC 212 : (1994 AIR SCW 2866) the date for determining the age of eligibility was fixed at 1st of August of the year in which the examination was to be held. At the time when this cut off date was fixed, there used to be only one examination for recruitment. Later on, a preliminary examination was also introduced. Yet the cut off date was not modified. The Tribunal held that after the introduction of the preliminary examination the cut off date had become arbitrary. Negativing this view of the Tribunal and allowing the appeal, this Court cited with approval the decision of this Court in Parmeshwar Match Works case (supra) and said that fixing of the cut off date can be considered as arbitrary only if it can be looked upon as so capricious or whimsical as to invite judicial interference. Unless the date is grossly unreasonable, the Court would be reluctant to strike down such a cut off date.
7. In the present case, the cut off date has been fixed by the State of Rajasthan under its Rules relating to various services with reference to the 1st of January following the year in which the applications are invited. All Service Rules are uniform on this point. Looking to the various dates on which different departments and different heads of administration may issue their advertisements for recruitment, a uniform cut off date has been fixed in respect of all such advertisements as 1st January of the year following. This is to make for certainty. Such a uniform date prescribed under all service Rules and Regulations makes it easier for the prospective candidates to understand their eligibility for applying for the post in question. Such a date is not so wide off the mark as to be construed as grossly unreasonable or arbitrary. The time gap between the advertisement and the cut off date is less than a year. It takes into account the fact that after the advertisement, time has to be allowed for receipt of applications, for their scrutiny, for calling candidates for interview, for preparing a panel of selected candidates and for actual appointment. The cut off date. therefore, cannot be considered as unreasonable. It was, however, strenuously urged before us that the only acceptable cut off date is the last date for receipt of applications under a given advertisement. Undoubtedly, this can be a possible cut off date. But there is no basis for urging that this is the only reasonable cut off date. Even such a date is liable to question in given circumstances. In the first place, making a cut off date dependent on the last date for receiving applications, makes it more subject to vagaries of the department concerned, making it dependant on the date when each department issues an advertisement and the date which each department concerned fixes as the last date for receiving applications. A person who may fall on the wrong side of such a cut off date may well contend that the cut off date is unfair, since the advertisement could have been issued earlier; Or in the alternative that the cut off date could have been fixed later at the point of selection or appointment. Such an argument is always open, irrespective of the cut off date fixed and the manner in which it is fixed. That is why this Court has said in the case of Parameshwaran Match Works (AIR 1974 SC 2349) (supra) and later cases that the cut off date is valid unless it is so capricious or whimsical as to be wholly unreasonable. To say that the only cut off date can be the last date for receiving applications, appears to be without any basis. In our view the cut off date which is fixed in the present case with reference to the beginning of the calendar year following the date of application, cannot be considered as capricious or unreasonable. On the contrary, it is less prons to vagaries and is less uncertain."
(27) Judging the issue in the light of law laid down by the Apex Court in Dr. Ami Lal Bhat (Supra), cut-off date prescribed under Rule 12 of 1975 Rules cannot be said to be per se arbitrary or discriminatory. In respect of various judicial services, practice of fixing cut-off date with respect to age, in the manner, it has been provided in Rule 12 of 1975 Rules appears to be consistent inasmuch as, recruitment to the post of Civil Judge earlier was governed by U.P. Nyayik Sewa Niyamavali 1951 (hereinafter referred to as "1951 Rules") which have been superseded by U.P. Judicial Service Rules 2001 (hereinafter referred to as "the Rules 2001"). Rule 11 of 1951 Rules provided cut-off date with respect to age being the "first day of January next following the date of commencement of the examination by the commission for recruitment to the service". Similarily, in Rule 2001, Rule 10 provides for age and cut-off date provided therein is "the first day of January next following the year in which the notification for holding the examination by commission inviting applications is published". Therefore, for determining cut-off date with respect to age, it appears that an uniform practice has been followed for recruitment in various judicial services. Such a date is not so wide off the mark so as to be construed grossly unreasonable or arbitrary. The time gap between the advertisement and the cut-off date is less than a year. It takes into account that after the advertisement, reasonable time has to be allowed for receipt of applications, their scrutiny, the time to call for candidates for written test or interview and for preparing a panel of selected candidates for actual appointment. Judged from all these factors, the cut-off date cannot be considered as unreasonable particularly when the said fixation of cut-off date is not hedged or restricted or controlled by any provision of the Constitution or any other statute requiring authorities to provide cut-off date in a particular manner.
(28) At this stage some of the learned counsels for the petitioners sought to argue that the aforesaid cut-off date is violative of Article 233(2) of Constitution of India. It would be appropriate to reproduce Article 233 of the Constitution:-
"233. Appointment of district judges.--(1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.
(2) A persons not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment."
(29) We do not find, after repeated reading of Article 233, that it prescribes any condition of eligibility with respect to age or cut-off date for determining age for recruitment in Higher Judicial Service. The only requirement under Article 233(2) of the Constitution for eligibility for direct recruitment to the post of District Judge is that (a) the person should not already be in service of Union or State; (b) has been for not less than seven years an Advocate or Pleader and, (c) is recommended by the High Court for appointment. Article 233 nowhere provides any other eligibility with respect to age etc. It has not been disputed before us that the rule framing authority can impose further conditions with respect to eligibility for appointment in service like character, physical fitness, educational qualification etc. Therefore, the validity of the age and cut-off date prescribed under Rule 12 of 1975 Rules cannot be judged at the anvil of Article 233(2) of the Constitution since it does not provide anything with respect to age. Where it is open to the rule framing authority to provide for age, it can also lay down limit for determining such age, i.e. cut-off date and since Article 233 is silent on this aspect of the matter, the validity of Rule 12 cannot be challenged by referring to Article 233 of the Constitution and the submission, in our view, is thoroughly misconceived.
(30) The petitioners thereafter sought to assail the cut-off date on the ground that the right of consideration is vested in them on the date of issuance of the advertisement and such vested right cannot be taken away by determining a cut-off date for eligibility with respect to age in future and the same is illegal and arbitrary. We have given our serious thoughts to the argument but express our inability to agree with the same. The right of consideration commences from the advertisement as admitted and thus it would also adhere to various conditions of the advertisement. It cannot be said that the right of consideration flowing from advertisement is distinct from and severable from the various conditions of eligibility prescribed in the advertisement. A candidate would have a right of consideration in accordance with the advertisement if he fulfils various qualifications and eligibility prescribed thereunder and not otherwise. It is not open to a candidate to suggest that he is entitled for benefit of the advertisement partly and the other part which is against him is to be ignored. An advertisement which is a public offer to all persons concerned will have to be taken as a whole and not in part. If a candidate fulfils all the qualifications prescribed in the advertisement only then he can be said to have a right of consideration and not otherwise. Since the basic premise of the argument in our view does not stand, the entire building raised thereon also cannot stand.
(31) Considering the entire gamut of the arguments with respect of the validity of cut-off date prescribed under Rule 12 of 1975 Rules, and in the light of the observations made above, we are of the considered opinion that the same is neither arbitrary nor discriminatory nor otherwise ultra vires of any provision of the Constitution. Hence issue no.1 is decided accordingly. The validity of Rule 12 of 1975 Rules is upheld.
ISSUES NO. 2 & 3
(32) Both these issues are interlinked and can be dealt with together. The entire arguments are built up on the basis of Rule 8 (1) of 1975 Rules which provides that the Court shall, from time to time, but not later than three years from the last recruitment fix number of officers to be taken at the recruitment, keeping in view the vacancies then existing and likely to occur in the next two years. The submission is that the Rule makes it obligatory to the Court to make recruitment at least once in every three years and in case it fails to do so, it is bound to compensate those candidates who have become overage or otherwise become ineligible due to non-holding of recruitment during a particular period. Elaborating the submission, it is also contended that the petitioners are entitled for relaxation in the matter of age to the extent the recruitment could not be held for a period of more than three years and to that extent relaxation needs to be given to such candidates.
(33) In order to appreciate the submission, we have to consider the scope of Rule 8(1) and its inter-relationship with other provisions of 1975 Rules. From Rule 5 of 1975 Rules it is evident that sources of recruitment are two, namely, direct recruitment from the bar, i.e., pleaders and advocates of not less than seven years of standing, and, by promotion from amongst the members of U.P. Nyayik Sewa. At the time of enactment of 1975 Rules the cadre of Judicial Magistrates in U.P. Judicial Officers Service was also existing and, therefore, they were also made a part of the source of recruitment by promotion inasmuch as under the Rules, quota for recruitment amongst various sources of recruitment was prescribed in the following manner:
(a) 15% from direct recruitment
(b) 70% from U.P. Nyayik Sewa
(c) 15% from U.P. Judicial Officers Service (Judicial Magistrates)
(34) The proviso to Rule 6 further provides that after exhaustion of source of U.P. Judicial Officers Service, their quota shall merge with U.P. Nyayik Sewa Cadre, meaning thereby that the ultimate quota for two sources of recruitment, namely, direct and promotion, would stand distributed to 15% and 85% respectively. If selection is not held on regular intervals, besides direct recruitment the members of U.P. Nyayik Sewa who constitute feeder cadre for promotion in U.P. Higher Judicial Service, would also be adversely affected inasmuch as, their right of consideration for promotion would also stand deferred. It is true that under Rule 4(4) of 1975 Rules, the Governor possess the power to leave unfilled or hold in abeyance any vacant post in service in consultation with the Court as may be found necessary but to attract Rule 4(4) a positive decision in the manner prescribed therein is required otherwise the recruitment process must follow the procedure contemplated under the Rules. Therefore, the obligation of the Court to determine vacancies as provided under Rule 8 periodically, in our view cannot be doubted. Somewhat a similar issue came up for consideration before the Apex Court in Syed Khalid Rizvi Vs. Union of India (1993) 3 SCC 575. It was contended that preparation of select list of the members of the State Police Officers for promotion in Indian Police Service every year was mandatory failing which they lose right of consideration for promotion in the higher scale and post which is violative of Article 16 of the Constitution of India. In the light of the right of in-service officers who were entitled to be considered for promotion under Rules governing their conditions of service, the Apex Court in para 34 of the Judgement observed as under:
" Equal opportunity is a fertile resource to augment efficiency of service. Equal chances of promotion to the direct recruitment and the promotees would produce harmony with accountability of proper implementation of Government policies. Unless the select list is made annually and reviewed and revised from time to time, promotee officers would stand to lose their chances of consideration for promotion which would be a legitimate expectation. This Court in Mohan Lal Kapoor's case held that the committee shall prepare every year the select list and the list must be submitted the U.P.S.C. By the State Government for approval and thereafter appointment shall be made in accordance with the Rules. We have, therefore, no hesitation to hold that preparation of the select list every year is mandatory. It would subserve the object of the Act and Rules and afford equal opportunity to the promotee officers to reach higher acholons of the service. The dereliction of the statutory duty must satisfactorily be account for by the State Government concerned and this Court takes serious note of wanton infraction."
(35) Considering 1975 Rules itself, the Apex Court in Srikant Tripathi (supra) in para 21 of the judgment held as under:
"The Higher Judicial Service forms the backbone of the judicial system forms the back bone of the judicial system and strengthening of such service with efficient people is a solution against the malady of long pending litigation in the sub-ordinate Courts. Any discontentment amongst the members of the Judicial Service, on account of inaction on the part of the High Court, either in the matter of fixing the number of officers to be taken by way of recruitment under Rule 8 or selecting the persons for promotion by adopting the criteria of seniority-cum-merit, as provided in Rule 20 as well as Rule 21 should be avoided and the High Court must adhere to the time-frame as well as the process of selection and appointment from different sources, which alone would subserve the smooth functioning of the cadre of Higher Judicial Service."
(36) However, even if we hold that determination of vacancies under Rule 8 is mandatory, we find that this by itself does not help the petitioners for the reason that in respect to promotee officers, their right of consideration for promotion is a condition of service to the extent they are entitled to be considered in the quota prescribed for them. However, similar position does not exist for direct recruitment though under Rule 6, 15% quota for direct recruitment is prescribed. As per proviso to sub rule (2) of Rule 8 as it stood before amendment of 2007, the maximum recruitment from the members of Bar was restricted though no such restriction was provided with respect to promotion meaning thereby that the Rules do not compel the Court to make recruitment of 15% of vacancies by direct recruitment at every recruitment and there may be an occasion where the recruitment could have been made by promotion only. This aspect has also been dealt with by the Apex Court in Sri Kant Tripathi (supra) and in para 16 of the judgment the Court observed as under:
"..........It may be noted that while the rules prohibit that under no situation, the number of direct recruits would exceed 15 per cent of the cadre strength, there is no prohibition so far as promotees are concerned and therefore in a given situation the rule contemplates of having promotees more than the quota fixed for them viz. 85 per cent. As we have stated earlier, this issue has not cropped up in the present batch of cases and as such we need not further probe into the matter. But it must be remember that the rules only provide the embargo that under no circumstances the Direct Recruits would exceed the 15% of cadre strength. But that does not compel the High Court to recruit 15% of the vacancies by direct recruitment at every recruitment. It would be for the High Court to decide taking all relevant factors into consideration, and ordinarily it may follow the quota provided in Rule 6....."
(37) The Court also held in Srikant Tripathi in para 16 of the judgment that " Rule 8, therefore, casts an obligation on the Court to determine and fix the number of officers to be taken at a particular recruitment keeping in view the vacancies then existing and likely to occur in the next two years". During the course of argument we directed the Court to produce record pertaining to previous recruitments in Higher Judicial Service and we find that after enactment of 1975 Rules initially the recruitment was made regularly from various sources. Direct recruitment, accordingly was also made bi-annually, i.e., 1976, 1978, 1980, 1982, 1984. Thereafter direct recruitment got engaged in chain of litigation, one after the another, causing disruption of recruitment at regular intervals. In 1986 vacancies for direct recruitment besides promotion were notified and advertised but the said advertisement was challenged before this Court in Shri Kant Tripathi & another Vs. State of U.P. & others, 1987 UPLBEC 222 and a Full Bench of this Court while allowing the writ petition quashed the advertisement for direct recruitment taking the view that in accordance with Rules 6 and 8 of 1975 Rules no vacancy at all occurred in direct recruitment quota.
(38) Thereafter for the recruitment year 1988, the process commenced in 1988 and the Court determined five vacancies to be filled in by direct recruitment. The advertisement was published on 27th July 1989. The said recruitment became subject matter of writ petition no. 3485 of 1992 and on account of interim order passed therein the appointments could not be made. The writ petition came to be dismissed on 11.2.1994 whereafter appointments were made from the recruitment of 1988 vide notification dated 13.4.1994. In the meantime, on 29.3.1992 (called 1990 Recruitment) another advertisement was published advertising six vacancies for direct recruitment which was finalized on 30.7.1996 when appointment letters were issued making five appointments only. For the recruitment of 1992-94 advertisement was issued on 13.6.1996, advertising 19 vacancies for direct recruitment. The recommendations of Selection Committee were approved by the Full Court vide resolution dated 11.7.1998 whereafter twenty appointments were made by direct recruitment vide notification dated 5.12.1998. In the meantime, in order to fill in backlog vacancies of scheduled caste candidates a special recruitment for SC/ST 1996 was held vide advertisement dated 13.3.1996 which was finalized by the Court's resolution dated 1.2.1997 pursuant whereto four appointments were made vide notification dated 8.8.1997. However, all these recruitments were also disputed and ultimately settled by the Apex Court in Srikant Tripathi (supra). The next recruitment started with the advertisement dated 8th June 2000 notifying 38 vacancies to be filled by direct recruitment. Written test was held on 25/26th November 2000 result whereof was declared on 30.11.2003. Interview was held in January 2004. The selection was considered by the Full Court on 5.2.2005. The recommendations were sent to the Government on 15.2.2005 whereafter appointment letters were issued between 13.4.2005 to 4.1.2007. The process for next recruitment thereafter has been started and the advertisement impugned has been published on 31.3.2007.
(39) The facts stated hereinabove show that the Court at regular intervals has taken steps for making recruitment as contemplated under the Rules but at times, the matter has delayed on account of pending litigation before this Court or the Apex Court and/or the time taken for implementing the directions issued by the Apex Court like All India Judges Association (supra) and Sri Kant Tripathi (supra). The Rules nowhere contemplate that if the Court fails to determine vacancies in the manner provided under Rule 8, what shall be its consequences. In the absence of any consequence stipulated in the Rules, even if, for certain period the number of vacancies could not be determined as provided under Rules, particularly when there is justification for such delay, in our view, it cannot be said that such delay would result in infringement or disregard of 1975 Rules. Non compliance of Rule 8 for just and valid reasons would not give rise to any cause of action or actionable claim to any person. Mere the reason that the vacancies were not determined under Rule 8 of 1975 Rules for every three years would not result in conferring any benefit to the petitioners or other similarly placed persons conferring them any right to claim any benefit including relaxation from operation of any rule when subsequently recruitment is made. Based on the observations of the Apex Court in Syed Khalid Rizvi (Supra) that the preparation of select list in Indian Police Service for the purpose of selection every year is mandatory, subsequently when the selection for more than one year by clubbing vacancies were sought to be made, it was challenged on the ground that since select list ought to have been prepared every year, clubbing of vacancies is illegal particularly for the reason that it deprive some of the candidates to be considered for selection while adding some others. Repelling this contention it was held that in the normal circumstances regular selection in accordance with rules must be adhered to but in the event of there being no such selection for just and valid reasons, the subsequent selection held in accordance with rules would not be vitiated. Relying on the Apex Court judgment in Union of India and others Vs. Vipin Chandra Hiralal Shah, 1996 (6) SCC 721 the Apex Court in Chandra Prakash Tiwari Vs. Shakuntala Shukla and others, AIR 2002 SC 2322 rejected a similar contention which was raised against clubbing of the vacancies observing that at the best it is an irregularity and not illegality.
(40) Moreover, rule 12 provides for age which is independent and is not subject to other rules. Therefore, Rule 12 would apply on its own irrespective of whether determination of vacancies took place at regular intervals as envisaged in Rule 8 or not. Any other view would make Rule 12 subordinate to Rule 8 though the rule framing authority has not said so and, therefore, any attempt by this Court to relax rigour of Rule 12 with reference to Rule 8 would amount to legislation which this Court is neither supposed to do nor should do. Learned counsel for the petitioners could not show any provision whereunder Rule 12 could have been relaxed by the authorities. In the absence of any provision for relaxation, by judicial interpretation or by judicial exercise such relaxation cannot be granted. In Food Corporation of India Vs. Bhanu Lodh (2005) 3 SCC 618 the Apex Court held that rigor of statutory provisions cannot be relaxed giving a total go-bye to the statute.
(41) Further a person if fulfils requisite educational and other qualifications does not possess a fundamental or legal right to be considered for appointment against any post or vacancy as soon as it is available irrespective of whether the employer has decided to fill in the vacancy or not. The right of consideration does not emanate or flow from existence of the vacancy but commences only when the employer decides to fill in the vacancy and the process of recruitment commences when the notification or advertisement of the vacancy is issued. So long as the vacancy is not made available for recruitment, no person can claim that he has a right of consideration since the vacancy exists and therefore, he must be considered. We have not been confronted with any statutory provision or authority in support of this contention that the petitioners have a right of consideration on mere existence of vacancy. On the contrary, we are of considered view that the right of consideration would come in picture only when the vacancy is put for recruitment, i.e., when the advertisement is published. That being so, the right of consideration commences when the recruitment process starts. The incumbent would obviously have right of consideration in accordance with the provisions as they are applicable when the advertisement is made and in accordance with conditions provided in the advertisement read with relevant rules. It is also obvious that if there is any inconsistency between the advertisement and Rules, the statutory rules shall prevail. In Malik Mazhar Sultan (supra), the Apex Court has clearly held that recruitment to the service could only be made in accordance with the Rules and not otherwise.
(42) Recently a similar claim for relaxation in respect to the period when no recruitment was held, pertaining to recruitment of U.P. Judicial Services came up for consideration before a Full Bench of this Court in Sanjay Kumar Pathak Vs. State of U.P. and others (writ petition no. 65189 of 2006) decided on 25.5.2007, and it held that unless permitted by the Rules no relaxation can be claimed. The Court also observed as under:
"Nobody can claim as a matter of right that recruitment on any post should be made every year."
(43) In view of the above discussion, it is held that Rule 8 makes it obligatory for the Court to make periodical recruitment but any deviation in compliance thereof for just and valid reasons would not give any advantage or consequence to the candidates who failed to participate in selections due to delay in recruitment by becoming overage or otherwise ineligible. Issue no.2 is answered accordingly. Similarly, issue no. 3 is answered in negative, i.e., the petitioners are not entitled for any relaxation on account of selection not held during certain period as contemplated under Rule 8 of 1975 Rules.
Issue No. 4
(44) Rule 5(a) of 1975 Rules as enacted initially provided for direct recruitment of pleaders and advocates of not less than seven years standing on the first day of January following the year in which the notice inviting applications is published. Rule 5 in its entirety has been substituted by 6th Amendment Notification dated 9.1.2007 and what was earlier Rule 5(a) is now Rule 5(c). Except change of the arrangement of the said sub rule, the substance continued to be the same. The objection of the petitioners is that the aforesaid provision permits such advocates who are less than seven years standing to be considered by the Court for the reason that the cut off date for the purpose of determining their standing at the Bar has been fixed on a future date namely the first day of January of the next following year in which the notice inviting application is published. For example the notice in question has been published on 31.3.2007 and therefore for the purpose of Rule 5(a) (old) and Rule 5(c) (new) the cut off date is 1.1.2008. It means that even an advocate enrolled as an advocate on 1.1.2001 and has standing of only 6 years and three months on 31.3.2007, would also be eligible to appear in the selection and would be entitled to be recommended by the Court in case he qualify the tests though he has less than seven years of standing since he would complete seven years of standing as an advocate on 31.12.2007. In effect, Rule 5(c) thus permit such person to appear for direct recruitment, and allows an advocate having less than seven years of standing to appear in selection though it is in the teeth of of Article 233(2) of the Constitution and therefore ultra vires. It is further contended that ineligible persons are being allowed to be considered alongwith the eligible persons and therefore the impugned rule is also ultra vires being arbitrary and discriminatory treating unequals as equal, and is violative of Article 16 and 16 of the Constitution.
(45) Article 233(2) of the Constitution provides for direct recruitment of the members of the Bar for appointment as District Judge and lays down the following qualification/procedure:-
"(a) a person not already in service of the Union or of the State;
(b) if he has been for not less than seven years an advocate or pleader; and
(c) is recommended by the High Court for appointment."
(46) Therefore, from the tenor of the language of Article 233(2) it is evident that the Legislature used both positive and negative language. It provides that only such person shall be eligible who is not already in service of the Union or of the State. It further restricts eligibility to such person who has been an advocate or pleader for not less than seven years. Lastly it provides and contemplates that a person who fulfills both the above requirement, if he has been recommended by the High Court for appointment, only then he shall be appointed and not otherwise. From a bare reading of Article 233(2) in our view it is evident that before recommendation, a person who is liable to be appointed as District Judge, he must fulfill both eligibility requirement namely he is not already in service of Union or of the State and has been an advocate for not less than seven years. From the language of Article 233(2) it is evident that the Legislature is very emphatic in respect to the condition of seven years as an advocate by providing that it should not be less than seven years i.e. by construing the sentence using phrase in negative language. A person who does not fulfill the requirement of seven years as an advocate cannot be recommended by the High Court for appointment under Article 233(2). Therefore, in our view the eligibility contemplated under Article 233(2) is not to be seen at the time of appointment by the Governor but must exist before the High Court makes recommendation for appointment. In case both these conditions do not exist, the question of recommendation will not arise since such a person will not be eligible for appointment and therefore it is obvious that such a person shall not be recommended by the High Court. The words "has been" refers to the state of affairs as existed in past and it is a present perfect tense. The words "has been" on a plain grammatical construction means, without doubt, the existence of past event i.e. the requisite event has already occurred and completed. For example, in the case in hand, the words "has been" is used with reference to seven years as an advocate. Meaning thereby, the person is an advocate for a period of seven years and the period has already completed. The expression "has been" and its connotation have been subject of interpretation before Apex Court and this Court, both, at several occasions and it would be useful to refer a few thereof. In Workmen of M/s. Firestone Tyre and Rubber Co. of India P. Ltd. v. Management, AIR 1973 SC 1227 their Lordships had an occasion to consider the meaning of the words "has been" occurring in Section 7(3)(a) and (e) of Industrial Disputes Act, 1948 which provides qualification of a person for appointment as Presiding Officer of a Labour Court and construing the words "has been" the Apex Court held as under:-
"The words 'has been a judge of a High Court' denote a past event, on the date of his appointment, he must have been a Judge of a High Court. Same is the position under clause (e) regarding the office mentioned therein. A similar interpretation will have to be placed on the expression 'has been' occurring in sub-section (3) of Section 7A regarding the qualifications to be possessed by a person for appointment as presiding officer of a Tribunal. The words 'has been' occurring in these sub-sections, immediately after the word 'is' or even separately clearly show that they refer to a past event."
(47) Earlier Section 57 of Bombay Police Act came up for consideration before the Apex Court in State of Bombay (now Maharshtra) Vs. Vishnu Ramchandra, AIR 1961 SC 307 and construing the words "if a person has been convicted......" the Apex court observed:-
"The verb "has been" is in the present perfect tense, and may mean either "shall have been" or "shall be". Looking, however, to the scheme of the enactment as a whole and particularly the other portions of it, it is manifest that the former meaning is intended."
In Mubarak Mazdoor Vs. K.K. Banerji, AIR 1958 All 323 construing the words "has been" this court held:-
"The petitioner's contention is that the proviso to Section 86(3) must be interpreted strictly according to the rules of grammar and that when so interpreted, the words has been (in the phrase ''has been a Judge') signify that the person eligible for appointment must not only have held, but be then holding, office as Judge; and that accordingly a retired Judge is not eligible for appointment. This argument is based on the assumption that ''has been' is a present perfect continuous tense. This assumption in our opinion is not correct. ''Has been' when not followed by a participle is the present perfect tense of ''to be' ''and accordingly indicates that state of being has existed and may be (but not necessarily is) continuing."
(48) Again the said words came up for consideration before a Division Bench of this Court in Shitla Prasad Shukla Vs. The State of U.P. and others, 1984 UPLBEC 461 and construing the words "has been" under Section 16-F(a) of U.P. Intermediate Education Act, 1921 this Court observed as under:-
"On a plain interpretation of Section 16-F in our opinion no appointment can be validly made unless the teacher possesses the prescribed minimum qualifications or has been exempted under sub-section (1) of Section 16-E. The words ''has been' on a plain grammatical construction, undoubtedly mean the existence of past event, i.e., the exemption which is contemplated under Section 16-F(1) must have already been granted before the teacher can be validly appointed."
(49) The judgment in Shitla Prasad Shukla (Supra) has been confirmed by the Apex Court by dismissing the appeal in Shitla Prasad Shukla Vs. State of U.P. and others, AIR 1986 SC 1859. Therefore, from a bare reading and plain construction of the language of Article 233(2) of the Constitution, we have no manner of doubt that a person who is eligible must already have completed seven years as an advocate or pleader and only thereafter he can be recommended by the High Court for appointment. It is true that eligibility is relevant for appointment but the process of recommendation cannot be considered out side the process of appointment but is a part and parcel thereof.
(50) Learned counsel for the High Court in order to justify the cut off date under Rule 5(c) contended that seven years as an advocate or a pleader even if has to be considered with reference to recommendation of the High court, the same has now been permitted by the Apex Court to be made on 2.1.2008 and since the cut off date is 1.1.2008, therefore, it cannot be said that the same is in any manner inconsistent to the requirement of Article 233(2). In other words what he contended is that the High Court shall make its final recommendation after 1.1.2008 and that would be a sufficient compliance of Article 233(2), hence Rule 5(c) cannot be said to be infringing the provision of Article 233 (2). In our view the submission cannot be accepted for more than one reason. The eligibility cannot depend upon a wholly uncertain event, which may vary from time to time. The word "recommended by the High Court" does not mean the formal letter of recommendation sent by the High Court to the Governor. Considering the scheme of the Rules the entire process whereby the High Court exercise its constitutional requirement of recommendation is integrally and inextricably connected. Rule 16 empowers the Hon'ble Chief Justice to appoint a selection committee consisting of such numbers of judges of the Court, not less than three, as he may decide, for each recruitment to the service. Part IV of 1975 Rules contains Rules 17 and 18 and provides the procedure for direct recruitment. Rule 16, 17 and 18 reads as under:-
"16. Selection committee--(1) The Chief Justice shall, for each recruitment to the Service, appoint a Selection Committee consisting of such number of Judges of the Court, not less than three, as he may decide.
(2) No proceeding of the Selection Committee shall be invalid namely by reason of a vacancy occurring in it, or by a member or members being not present at one or more of its meetings, provided that a majority of the members of the Committee have been present at each meeting."
"17. Direct recruitment--(1) Applications for direct recruitment to the Service shall be invited by the Court by publishing a notice to that effect in the leading newspapers of the State and shall be made in the form prescribed from time to time to be obtained from the Registrar of the Court on payment of the prescribed fees.
(2) The application shall be submitted to the Court by the candidate through the District Judge within whose jurisdiction the candidate has been practising, and in the case of members of Bar normally practising in High Court, through the Registrar of the High Court. The application shall be accompanied by certificate of age, academic qualifications, character, standing as a legal practitioner and such other documents as may be required to be furnished.
(3) The District Judge shall forward to the Court all the applications received by him along with his own estimate of each candidate's character and fitness for appointment to the Service."
"18. Procedure of selection--(1) The Selection Committee referred to in rule 16 shall scrutinize the applications received and may thereafter hold such examination, as it may consider necessary for judging the suitability of the candidates. The Committee may call for interview such of the applicants who in its opinion have qualified for interview after scrutiny and examination.
(2) In assessing the merits of the candidate the Selection Committee shall have due regard to his professional ability, character, personality and health.
(3) The Selection Committee shall make a preliminary selection and submit the record of all candidates to the Chief Justice and recommend the names of the candidates in order of merit who, in its opinion, are suitable for appo9intment to the Service.
(4) The Court shall examine the recommendations of the Selection Committee and, having regard to the number of direct recruits to be taken, prepare a list of selected candidates in order of merit and forward the same to the Governor."
(51) A perusal of the aforesaid makes it clear that for the purpose of discharging its function of making recommendation for appointment of District Judges from Bar an advertisement shall be published by the Court in various leading news papers of the State. The applications shall be received by the Registrar of the High Court as well as the District Judges within whose jurisdiction the candidates has been practicing. All the applications shall be accompanied by the certificate of age, academic qualifications, character standing as legal practitioner and other documents. The District Judges while forwarding the applications to the Court would also submit their own comments with respect to each candidate's character and fitness for appointment to the service. All these applications thereafter shall be processed by the selection committee constituted under Rule 16 who shall also conduct examination including interview. Thereafter the selection committee shall prepare a list and submit the record of all the candidates to the Chief Justice alongwith its own recommendation with respect to the names of the candidates in order of merit who in its opinion are suitable for appointment in the service. Rule 18 sub-rule 3 term the entire exercise undertaken by the selection committee as "preliminary selection". Under Rule 18(4) the Court thereafter shall examine the recommendations of the selection committee and prepare a list of selected candidates in order of merit which shall be forwarded to the Governor. Therefore, all the steps commencing from Rule 17(1) to Rule 18(4) are integrally connected with the process of recommendation of the Court and it cannot be said that the 'recommendation' means only the final list sent to the Governor and earlier thereto it is something unconnected and distinct from recommendation. Here the process of recommendation therefore commences on 31.3.2007 which may have completed thereafter. Presently as per directions of the Apex Court outer limit is 2.1.2008. If that be so, for the purpose of eligibility of an advocate for recommendation and appointment as District Judge, the length of his standing as an advocate has to be seen at least on the date when the process of recommendation commences and cannot depend on a date when the formal letter is ultimately issued. Since Rule 5(a) as it initially enacted 1975 Rules has already undergone amendment and presently it is Rule 5(c) which is on the statute book therefore there is no occasion to consider the validity of Rule 5(a) of 1975 Rules. So far as Rule 5(c) of 1975 Rules as it stands vide 6th Amendment dated 9.1.2007, we have no hesitation to hold it inconsistent and contrary to Article 233(2) of the Constitution of India and therefore is ultra vires to the extent it says ''on the first day of January next following the year in which the notice inviting application is published", the said rule is liable to be struck down.
(52) Consequently clause 2 of the instructions of the advertisement in so far as it provides the cut off date as 1.1.2008 is also declared illegal and accordingly quashed.
Issue no. 5
(53) The petitioners who are working as APP/APOs have pressed their claim contending that the Apex Court in the case of Chandra Mohan Vs. State of U.P. and others, AIR 1966 SC 1987 held that the expression "service" in Article 233(2) of the Constitution means only the "judicial service", and therefore, only those who are in "judicial service" are not eligible to be appointed as District Judge under Article 233(2) but all other persons even if they are in service, they are eligible to be appointed and cannot be denied right to appear in the present selection. It is said that 1975 Rules in so far as they restrict the persons working as APP/APOs, are ultra vires of Article 233(2) of the Constitution of India. It is further contended that Rule 49 of the Bar Council of India rules permits an advocate to continue to be an advocate even if he is a full time salaried employee of the central Government or of State or any public corporation or any body constituted by statute provided he is a law officer and is entitled to be enrolled under the Rules of the State Bar Council made under Section 22(2)(d) read with Section 24(1)(e) of the Act and by terms of his appointment he is required to act and/or pleads in Courts on behalf of his employer. It is also contended that this issue is already answered by the Apex Court in Sushma Suri (Surpa) and therefore, the letter dated 26.4.2007 issued by the Registrar General is illegal,without jurisdiction and even otherwise is contrary to law. Those APP/APOs who were enrolled with Bar Council of Uttar Pradesh and thereafter have practiced at the Bar for seven years are entitled to be considered under Article 233(2) and cannot be denied right of consideration merely because they have in the meantime being appointed as APP/APO and have become Government servant as well since a Government servant is not debarred from consideration under Article 233(2) of the Constitution either under 1975 Rules or under the Constitution itself provided he also answer the description of advocate having not less than seven years of standing.
(54) Sri Sirohi, learned senior counsel appearing on behalf of High Court on the contrary sought to distinguish the Apex Court judgment in Sushma Suri (Supra) on the ground that she was engaged as Public Prosecutor referable to Section 24 Cr.P.C. though the petitioners are APP/APO appointed under Section 25 Cr.P.C. which makes a substantial difference amongst the status of the two categories of the Prosecuting Officers. It is further contended that Rule 49 came up for amendment in 2001 inasmuch as vide Bar Council of India Resolution No. 65 of 2001 dated 21.6.2001, paragraphs 2 and 3 of Rule 49 were deleted and the irresolution of Bar Council of India reads as under:-
"RESOLVED that the second and third paras of Rule 49, Section VII, Chapter II, Part VI of the Bar Council of India Rules providing for enrolment of 'Law Officers' be and is hereby deleted as the responses received from the majority of the Bar Councils are in favour of deletion of the Rule."
(55) Thus it is contended that after amendment of Rule 49 of the Bar Council of India Rules and also considering the fact that Sushma Suri (Supra) was a case of a Public Prosecutor appointed under Section 24 Cr.P.C., the petitioners cannot take any advantage of the said judgment. Sri Sirohi further placed reliance on a Division Bench judgment of Andhra Pradesh High Court in Mallikarjuna Sharma and others Vs. The State of A.P. And others, 1978 Cri.L.J. 1354, S. Naganna Vs. Krishan Murthi (Supra), this Court judgment in Deepak Kumar Agarwal (Supra) and a Full Bench of Hon'ble Rajasthan High Court Munni Lal Garg Vs. State of Rajasthan (Supra). He further contended that the Apex Court in State of U.P. Vs. Johri Mal (Supra) and Samrendra Das, Advocate Vs. State of West Bengal and others, (2004) 2 SCC 274 has held that the Assistant Public Prosecutors are the employees of the State holding civil post and therefore, they cannot be considered to be an advocate in order to become eligible for appointment in Higher Judicial Service under Article 233 (2) of the Constitution.
(56) We have given our serious consideration to the above submissions. Section 2(a) of the Advocates Act, 1961 (hereinafter referred to as "1961 Act") defines "advocate" means an advocate entered in any roll under the provisions of 1961 Act. Section 29 of 1961 Act confers right upon a person to practice a profession of law and reads as under:-
"29. Advocates to be the only recognized class of persons entitled to practice law.--Subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practice the profession of law, namely, advocates."
(57) Section 24 of 1961 Act lays down the conditions on fulfillment whereof a person may be admitted as an advocate and besides other, Section 24(1)(e) reads as under:-
"(e) he fulfils such other conditions as may be specified in the rules made by the State Bar Council under this Chapter;"
(58) The power to make rules has been conferred by Section 28 upon State Bar Councils which includes the conditions subject to which a person may be admitted as advocate as 'advocate' and the relevant Section 28(2)(d) is reproduced as under:-
"(d) the conditions subject to which a person may be admitted as an advocate on any such roll;"
(59) Therefore, from the scheme of 1961 Act it is evident that a person who fulfills various conditions prescribed under the rules of Bar Council may be admitted as an advocate and after his enrollment shall be entitled to practice the profession of law subject to other provisions of 1961 Act. A persons once enrolled and admitted as advocate if by virtue of any provisions under 1961 Act or rules framed thereunder ceases to be an advocate, he shall also cease to practice profession of law and cannot be said to be an advocate but unless he incur such disqualification, it is difficult to comprehend that a person once admitted an an advocate under 1961 Act yet can be denied the said status for the reasons other than those connected with the provisions of 1961 Act or rules framed thereunder. One of the disqualification for an advocate was provided under Rule 49 of Bar Council of India Rules which reads as under:-
"An Advocate shall not be a full-time salaried employee of any person, Government, firm, corporation or concern, so long as he continues to practice and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears, and shall thereupon cease to practice as an Advocate so long as he continues in such employment.
Nothing in this rule shall apply to a Law Officer of the Central Government or of a State or of any Public Corporation or body constituted by statue who is entitled to be enrolled under the rules of his State Bar Council made under Section 28(2)(d) read with Section 24(1)(e) of the act despite his being a full-time salaried employee.
Law Officer for the purpose of this Rule means a person who is so designated by the term of his appointment and who, by the said term, is required to act and/or plead in Courts on behalf of his employer."
(60) In the light of Rule 49 of Bar Council of India Rules in the case of Sushma Suri (Supra), the Apex Court had an occasion to consider as to whether a Public Prosecutor/Government Counsel/State Counsel or of any Corporation or Authority would cease to be an advocate for the purpose of Article 233(2). In the said case Sushma Suri was enrolled as an advocate practicing in Supreme Court of India. She passed Advocates on Record examination in 1982 and thereafter was engaged as Assistant Government Advocate to practice in Supreme Court of India. She was also promoted as Additional Government Advocate. When a recruitment in Higher Judicial Service of Delhi commenced, she applied but her candidature was rejected on the ground that she does not belong to the Bar being a salaried employee of the Government and thus the aforesaid issue came to be considered before the Apex Court. The Court after referring to Rule 49 of Bar Council of India Rules, as well as the provisions of 1961 Act held in para 5, 7 and 8 of the judgment as under:-
"5. If a person on being enrolled as an advocate ceases to practice law and takes up an employment, such a person can by no stretch of imagination be termed as an advocate. However, if a persons who is on the rolls of any Bar Council is engaged either by employment or otherwise of the Union or the State or any corporate body or person practices before Court as an advocate for and on behalf of such Government, Corporation or authority or person, the question is whether such a person also answers the description of an advocate under the Act. That is the precise question arising for our consideration in this case."
"7. For purposes of Advocates Act and the Rules framed thereunder the Law Officer (Public Prosecutor or Government Counsel) will continue to be an advocate. The intention of the relevant Rules is is that a candidate eligible for appointment to Higher Judicial Service should be a person who regularly practices before the Court or Tribunal appearing for a client."
"8. In Oma Shanker Sharma's case, the Delhi High Court approached the matter in too pedantic a manner losing sight of the object of recruitment under Article 233(2) of the Constitution. Whenever any recruitment is conducted to fill up any post, the area of recruitment must be as broad based as Rules permit. To restrict it to advocates who are not engaged in the manner stated by us earlier in this order is too narrow a view, for, the object of recruitment is to get persons of necessary qualification, experience and knowledge of life. A Government counsel may be a public prosecutor or Government Advocate or a Government Pleader. He too gets experience in handling various types of cases apart from dealing with the officers of the Government. Experience gained by such persons who fall in this description, cannot be stated to be irrelevant nor detrimental to selection to the posts of Higher Judicial Service. The expression 'members of the Bar' in the relevant rule would only mean that a particular class of persons who are actually practising in courts of law as pleaders or advocates. In a very general sense an advocate is a person who acts or pleads for another in a Court and if a public prosecutor or a Government counsel is on the rolls of the Bar Council is entitled to practice under the Act, he answered the description of an advocate."
(61) It cannot be doubted at all that the petitioners who are working as APP/APOs are the Government servant holding civil post. Even this position has not been disputed by the learned counsel for the petitioners also. In Samrendra Das (Supra) the Apex Court in para 5 of the judgment held as under:-
"We hold that the post of APP was a civil post under the State in terms of Section 15 of the said Act 1985."
(62) The same is the view of Johri Mal (Supra). However, this by itself would not make an APP/APO ineligible for consideration in Higher Judicial Service under Article 233(2) of the Constitution unless it can be said that he is not an advocate. It is not disputed that one of the eligibility under Article 233(2) that the person should not be in the service of the Union or State is confined to only Judicial Service and none else. A person in service other than "judicial service" may be considered for appointment in Higher Judicial Service under Article 233(2) if he is otherwise eligible i.e., he is an advocate with seven years standing. In Behariji Dass Vs. Chandra Mohan, AIR 1969 Alld. 594 one Prayag Narain Dass who was working as Judicial Magistrate applied for direct recruitment in U.P. Higher Judicial Service under U.P. Higher Judicial Service Rules, 1953 (hereinafter referred to as "1953 Rules"). He was an advocate with seven years of practice whereafter he became employed as Judicial Magistrate at the time when he applied for direct recruitment. A Full Bench of this Court upheld his appointment under Article 233(2) observing that only the persons belonging to Judicial Service were disqualified under Article 233(2). This Court observed that disqualification for the persons who are in service under Article 233(2) was applicable only to the persons who are in "Judicial Service" and not others. This was also reiterated in Satya Narain Singh Vs. High Court of Judicature at Allahabad and others, AIR 1985 SC 308 where in para 5 of the judgment the Apex Court held:-
"5. Posing the question whether the expression "the service of the Union or of the State" meant any service of the Union or of the State or whether it meant the judicial service of the Union or of the State, the learned Chief Justice emphatically held that the expression "the service" in Art. 233(2) could only mean the judicial service. But he did not mean by the above statement that persons who are already in the service, on the recommendation by the High Court can be appointed as District Judges, overlooking the claims of all other Seniors in the Subordinate Judiciary Contrary to Art. 14 and Art. 16 of the Constitution."
(63) In Sushma Suri (Supra) in order to adjudge as to whether an incumbent appointed as law officer by the government on salary answers the expression "advocate" or not the Court in para 10 of the judgment, after referring Rule 49 of Bar Council of India Rules, observed as under:-
"What is of essence is as to what such Law Officer engaged by the Government does-whether he acts or pleads in court on behalf of his employer or otherwise. If he is not acting or pleading on behalf of his employer, then he ceases to be an Advocate. If the terms of engagement are such that he does not have to act or plead, but does other kinds of work, then he becomes a mere employee of the Government or the body corporate. Therefore, the Bar Council of India has understand the expression "Advocate" as one who is actually practising before courts which expression would include even those who are Law Officers appointed as such by the Government or body corporate."
(64) In Satish Kumar Sharma Vs. The Bar Council of Himachal Pradesh, JT 2001 (1) SC 236 after referring to Sushma Suri (Surpa) the Court in para 20 of the judgment observed as under:-
"20. As stated in the above para the test indicated is whether a person is engaged to act or plead in a court of law as an advocate and not whether such person is engaged on terms of salary or payment by remuneration. The essence is as to what such Law Officer engaged by the government does."
(65) No doubt the aforesaid law would have been applicable where Rule 49 as it stood prior to 2001 would have been applicable but after amendment of Rule 49 of the Bar Council of India Rules whether any position has changed in the State of U.P. has to be seen by this Court. We find that under 1961 Act the Power to frame rules under Section 28 has been conferred upon the State Bar Council for laying down the conditions of enrollment of an advocate. U.P. Bar Council has also framed its Rules. Rule 10, 11 and 12 of the U.P. Bar Council Rules framed under Section 28(1) (c) read with Section 24 and 25 of 1961 Act reads as under:-
"10. No Advocate shall accept any employment which in the opinion of the Bar Council, is derogatory to the status of an Advocate, and if he does so, he shall be liable to be proceeded against for the professional misconduct."
"11. A person who is otherwise qualified to be admitted as an Advocate but is either in full or part-time service or employment or is engaged in any trade, business or profession shall not be admitted as an Advocate:
Provided, however, that t his rule shall not apply to-
(i) Any persons who is a Law Officer of the Central Government or the Government of a State;
(ii) Any person who is an Articled Clerk of an Attorney;
(iii) Any person who is an assistant to an Advocate or to an Attorney who is an Advocate;
(iv) Any person who is in part-time service as a Professor, Lecturer or Teacher in Law;
(v) Any person who by virtue of being a member of Hindu joint family has an interest in a joint Hindu family business, provided he does not take part in the management thereof; and
(vi) Any other person or class of persons as the Bar Council of India may from time to time exempt."
"12. Candidates who are or may be doing honorary service may be enrolled as Advocates on furnishing an affidavit to that effect."
(66) A perusal of the Rules applicable in the State of U.P. shows that before enrollment an applicant should not be in the full time or part time service or employment but the said condition is not applicable to a person appointed as law officer of the Central Government or of the State government or an articled clerk of an attorney or a part time professor, lecturer or teacher in law etc. Even a person doing honorary service can be enrolled as advocate. Rule 10 on the other hand provides that after a person is admitted as an advocate, he may accept any employment which in the opinion of Bar Council is not derogatory to the status of an advocate. Thus rule 10 of U.P. Bar Council specifically permits a person to engage in service who is already enrolled with the Bar Council provided it is not derogatory to the status of an advocate. It is not the case of the respondents that employment of the petitioner as APP/APO is derogatory to the status of an advocate. The Bar Council of India Rules nowhere provides that a person who is validly enrolled as an advocate under the rules of the concerned State Bar Council and is permitted to be engaged in an employment under the said rules, would be disqualified by virtue of the rules framed by the Bar Council of India. Such overriding power to the rules framed by the Bar Council of India has not been given so as to override the rules framed by the State Bar Council under Section 28 of the Act. Under the rules framed by the Bar Council of U.P. the petitioners once admitted as advocate, if have been employed as APP/APO, such employment is not permitted unless the Bar Council forms an opinion that such employment is derogatory to the status of an advocate which is not the case of any of the party before us. In the circumstances it cannot be said that merely because the petitioners were appointed as APP/APO they cease to be an advocate particularly when they continue to plead cases before the Court representing the State Government. It would also be appropriate at this stage to consider the law applicable in Susham Suri (Surpa) with reference to Section 24 and 25 of the Cr.P.C. as sought to be argued by Sri Sirohi.
(67) The appointment of Assistant Public Prosecutors for conducting prosecution in the Court of Magistrate is governed by Section 25 Cr.P.C. Section 24 deals with "Public Prosecutors" which includes "Additional Public Prosecutor". Sections 24 and 25, Cr.P.C. are reproduced as under:-
"24. Public Prosecutors.--(1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.
(2) The Central Government may appoint one or more Public Prosecutors, for the purpose of conducting any case or class of cases in any district or local area.
(3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district:
Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district.
(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion, fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district.
(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4).
(6) Notwithstanding anything contained in sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre:
Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under sub-section (4).
(7) A persons shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-section (1) or sub-section(2) or sub-section (3) or sub-section (6), only if he has been in practice as an advocate for not less than seven years.
(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a persons who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.
(9) For the purposes of sub-section (7) and sub-section (8), the period during which a persons has been in practice as a pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate."
"25. Assistant Public Prosecutors.--(1) The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates.
[(1-A) The Central Government may appoint one or more Assistant Public Prosecutors for the purpose of conducting any case or class of cases in the Courts of Magistrates.]
(2) Save as otherwise provided in sub-section (3), no police officer shall be eligible to be appointed as an Assistant Public Prosecutor.
(3) Where no Assistant Public Prosecutor is available for the purposes of any particular case, the District Magistrate may appoint any other person to be the Assistant Public Prosecutor in charge of that case:
Provided that a police officer shall not be so appointed-
(a) if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted; or
(b) if he is below the rank of Inspector."
(68) The comparison of two provisions make it clear that for appointment of Public Prosecutor or Additional Public Prosecutor he/she must be an advocate having practiced for not less than seven years. Vide U.P. Act No. 33 of 1978, amendment has been made under Section 24. It is provided that the period during which a person has practiced as a pleader or has rendered service as a Public Prosecutor, Additional Public Prosecutor or Assistant Public Prosecutor shall be deemed to be a period during which such person has been in practice as an Advocate. Sub-section 6 of Section 24 also provides that if there is regular cadre of prosecuting officers the State Government shall appoint Public Prosecutor or Additional Public Prosecutor only from amongst the person constituting such cadre. For the purpose of Section 25, however, it is clear that there is no such requirement that a person should be an advocate before his appointment as Assistant Public Prosecutor. It is not disputed that in the State of U.P. a regular cadre of prosecuting officers has been constituted by U.P. Prosecuting Officers Service Rules, 1991 (hereinafter referred to as "1991 Rules") which comprises 'Group-A' and 'Group-B' posts. Rule 5 shows the service comprising of the following categories of the pots:-
"(1) Assistant Prosecuting Officer
(2) Prosecuting Officer
(3) Senior Prosecuting Officer (ordinary scale)
(4) Senior Prosecuting Officer (senior scale)
(5) Joint Director Law."
(69) The qualifications prescribed in part IV of 1991 Rules provides qualifications for the post to be filled in by direct recruitment namely, Assistant Prosecuting Officer and besides nationality, age, character, marital status and physical fitness, the other requisite qualification is the academic qualification i.e. Degree in law from a recognized University. 1991 Rules nowhere requires that for appointment to the post of Assistant Prosecuting Officer a candidate must be an advocate. From the averments made in the writ petitions filed by the persons working as APP/APOs it is evident that many of them have never been enrolled as an advocate and evidently they cannot be said to be an advocate under the provisions of 1961 Act. Therefore, such petitioners who are admittedly not an Advocate under 1961 Act having never been enrolled therein, it cannot be said that they are entitled to appear in the aforesaid selection for direct recruitment since do not satisfy the eligibility condition of being an advocate.
(70) However, the petitioners who were enrolled as advocate under 1961 Act and have worked for seven years as such, and thereafter appointed as APP/APO, they cannot be in our view disqualified only for the reason that they have been appointed as prosecuting officer under 1991 Rules since even when they are working as APP/APO, they are discharging duties as advocate by pleading their case before a Court of law representing the State. Such persons do not incur any disqualification either under Article 233(2) or under 1961 Act or the rules framed by the U.P. Bar Council under 1961 Act and therefore to deny such petitioners right of consideration in the selection in question is illegal and arbitrary.
(71) Learned counsel for the respondents also brought before us the application form and the undertaking submitted alongwith application form before the Bar Council of Uttar Pradesh while seeking enrollment which contains condition at Item No. 9 as under:-
"MAIN GHOSHIT KARTA/KARTI HOON KI KISI SEWA ME YUKT HONE, VYAPAR, KAROBAR ATHWA BHINN VRITTI KARNE PAR ADHIVAKTA PRAMAN PATRA BAR COUNCIL KO TURANT ABHYARPIT KAR DOONGA/DOONGI."
(72) A bare perusal thereof makes it clear that where a person gets employment which is in the nature of other than an advocate, he has to surrenders his licence of practice to the Bar Council for the period he is employed. It is nobody's case that the petitioners working as APP/APO are engaged in an employment which is different in nature than that of an advocate. Candidature of APP/APO has not been considered to be untouchable or abhorrable for judicial service as is apparent from the following observations of the Apex Court contained in its order dated 10.5.1995 passed in I.A. No. 31 and 32 of 1995 in All India Judges Association and others Vs. Union of India and others (supra):
"By reason of this provision, Assistant Public Prosecutors have been debarred from further competing in the selection process which is at present in progress. There can be no doubt that an Assistant Public Prosecutor practices as a lawyer and is eligible for selection to the judicial service, provided he has not less than three years practice as a lawyer. This position is, fairly, not disputed by learned counsel appearing for the State of Rajasthan. Accordingly, I.A. No. 31, 31 and the I.A. in W.P. No. 320/95 are allowed and the applicants shall be permitted to complete the selection process."
(73) Learned counsel for the petitioners, however, sought to argue that even if the petitioners who were never enrolled as an advocate under 1961 Act yet since their service as APP/APO has been recognized under Section 24/25 Cr.P.C. as practice as an advocate and therefore they are also entitled to be considered under Article 233(2). The submission is thoroughly misconceived for the reason that deeming fiction under Section 24/25 Cr.P.C. is confined only for the purpose of Section 24 Cr.P.C. and is not extended to other statutes. For determining whether a person is an advocate or not, we have no manner of doubt that he must be an advocate under 1961 Act and only then he can be considered under Article 233(2) and not otherwise.
(74) Therefore, the APP/APO practice as an Advocate and hence is eligible to appear in selection for judicial service provided he fulfill all other qualifications. At this Stage we required the learned counsel for the respondents to show as to under which provision the Registrar General issued letter dated 26.4.2007 directing the concerned District Judges not to forward applications of persons working as APP/APO but none has been placed before us authorizing the Registrar General to issue such letter or order. The judgments cited by the learned counsel for the respondents namely, the Hon'ble Andhra Pradesh High Court and Rajasthan High Court in our view would not help in view of the Apex Court judgment in Sushma Suri (Supra) and Satish Kumar Sharma (Surpa) and in our view both these authorities cannot be considered to be a good law after Apex Court's judgment in Sushma Suri (Surpa).
(75) The two Division Bench judgments of this Court relied by the learned counsel for the High Court, i.e., Akhilesh Kumar Misra (Supra) and Deepak Kumar Agarwal (Supra) also do not support him. Firstly, in none of the judgments the binding precedent of the Apex Court in Sushma Suri (Supra) has not been considered. In Akhilesh Kumar Misra (Supra) the petitioner no. 1 was enrolled as an advocate on 28.4.1982 and was appointed as APP on 12.1.1987. Similarly, petitioner no. 2 and 3, Rajesh Kumar Saxena and Abhmanyu Kumar Mishra passed their Law Examination in the year 1980 and were appointed as APP on 19.1.1985. Thus none of them was advocate having practiced for seven years and, therefore, ex facie, were not entitled to be considered under Article 233(2). The aforesaid judgment in so far as it held that the said petitioners were ineligible under Article 233 (2) is consistent with the view which we have taken. However, the further reasoning that APP is not at all an advocate and cease to be as advocate under 1961 Act on appointment is not consistent with the view taken by the Apex Court in Sushma Suri (Supra) and since the said binding judgment of the Apex Court has not been considered in the said case, we are bound to follow the law laid down by the Apex Court. Similarly in Deepak Kumar Agarwal (Supra) the petitioners were working as Law Officers in companies namely, M/s Modern Food Industries (India Ltd.) and U.P. Finance Corporation. It was admitted case that before their appointment they had not worked as an advocate for a period of seven years. On the contrary they contended that their working as Law Officers be counted as seven years practice as an advocate which was not accepted by this Court. The said judgment, therefore, in the facts and circumstances of the case also would not help the respondents since it was decided on its own facts which are totally distinguishable and are not applicable to the cases in hand.
(76) Thus only those petitioners who were enrolled as Advocates and have practiced as such for 7 years are eligible to appear in Higher Judicial Service Examination of U.P. and cannot be disqualified only on the ground that presently they have been appointed as APP/APOs. However, those who were never enrolled as an Advocate under 1961 Act will not be entitled to be considered under Article 233 of the Constitution of India. Issue no. 5 is decided accordingly.
1. Rule 12 of U.P. Higher Judicial Service Rules, 1975 is declared valid. It is neither arbitrary nor violative of Article 14, 16 and 233 of the Constitution of India.
2. Rule 5(c) of U.P. Higher Judicial Service Rules, 1975 to the extent it reads " on the first day of January next following the year in which notice inviting application is published", is held illegal and ultra vires of Article 233 (2) of the Constitution of India and to that extent it is struck down.
3. Clause (2) of the instructions of the advertisement dated 31.3.2007 in so far as it provides the cut-off date as 1.1.2008 for determining experience of an advocate is declared illegal and to that extent it is quashed.
4. The circular dated 26.4.2007 issued by the Registrar General, Allahabad High Court is hereby quashed. The respondents are directed not to prevent those petitioners who were enrolled as advocate under 1961 Act and have practiced for 7 years and fulfill all other qualifications under 1975 Rules from appearing in HJS Examination, 2007 and the respondents are restrained from withholding their application forms only on the ground that they are employed as APP/APO under the State government.
5. Writ Petitions No. 21982 of 2007, 22356 of 2007 and 22841 of 2007 are dismissed, Writ Petitions No. 20016 of 2007, 22132 of 2007, 22485 of 2007, 20625 of 2007, 21903 of 2007; 21584 of 2007, 22122 of 2007, 23441 of 2007, 23793 of 2007, 21570 of 2007, 22105 of 2007, 21565 of 2007 and 25356 of 2007 are partly allowed.
6. Since the recruitment for Higher Judicial Service has to be completed without any further delay, it is also provided that as a result of the directions issued by this Court it would be open to the respondents to publish a corrigendum to the earlier advertisement publishing a fresh date inviting applications and those who have already applied may not be required to apply again and thereafter the recruitment may proceed and completed in accordance with law.
There shall be no order as to costs.
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