PIL In Allahabad High Court Challenges Amendment To Rule Providing For Direct Recruitment Of Advocates In UP Higher Judicial Services

A public interest litigation has been filed in Allahabad High Court challenging the validity of Rule 5 of U.P. Higher Judicial Service Rules, 1975 as amended in the year 2023 with the issuance of the notification dated 11^th January 2024.

Rule 5 of the U.P. Higher Judicial Service Rules, 1975 provides for sources of recruitments in High Judiciary. Prior to amendment sub-rule (c) of Rule 5 provided that for direct recruitment from amongst advocates, it was necessary to have a standing of not less than 7 years as on the last date fixed for submission of the application form. By amendment notification dated 11^th January 2024, sub-rule (c) was amended to the extent that the words “practicing as an Advocate” replaced the word “standing”.

Further, a proviso was added to the sub-rule (c) which reads as

“Provided that only such advocates shall be permitted to appear in the examination process who have been engaged independently for conducting not less than 30 cases (other than bunch cases) for Unreserved categories and 24 cases (other than bunch cases) for Scheduled Castes, Scheduled Tribes and Other Backward Classes in the preceding three years, from the year of publication of advertisement for recruitment, before any Court. The certificate of such independent engagement may be issued by District & Sessions Judge of the District or Registrar General/Registrar of High Courts or Secretary General of Supreme Court, as the case may be.”

Counsel for petitioner challenged the exercise of power under Article 309 (Recruitment and conditions of service of persons serving the Union or a State) of the Constitution of India for amending the UP Higher Judicial Service Rules. It was argued that such exercise of power exceeds the power prescribed under sub-Article (2) of Article 233(Appointment of District Judges) of the Constitution of India.

It was argued that the amendment was bad in law as the recommendation of High Court cannot be the driving force for amendment under Article 309 of the Constitution of India. It was also argued that the recommendation could not be made on behalf of the High Court could not be made by the Acting Chief Justice, while discharging duties of the Chief Justice.

Lastly, the proviso imposing condition of 30 independent cases was challenged on grounds of arbitrariness and being violative of Article 14 of the Constitution of India.

Per Contra, a preliminary objection was raised by the counsel appearing on behalf of the Allahabad High Court stating that the petitioner being an aspirant of Higher Judicial Services could not challenge the Rule by way of a public interest litigation.

Further, he argued that the sub-Articles of the Constitution of India cannot be read in isolation. The power of the High Court to make recommendations can be seen on a holistic reading of the Constitution of India. It was argued that the grounds set out in the petitioner lacked “legal sanctity.”

The bench comprising Justice Attau Rahman Masoodi and Justice Brij Raj Singh have granted time to the parties to exchange affidavits.

Case Title: Trideep Narayan Pandey v. Union Of Bharat Thru. Its Secy. Ministry Of Law And Justice, New Delhi And Others [PUBLIC INTEREST LITIGATION (PIL) No. - 109 of 2024]

Counsel for Petitioner: Asok Pandey, Nivedita Shukla, Sachin Kumar

Counsel for Respondent : Gaurav Mehrotra

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