21 March 2023 4:16 AM GMT
The Delhi High Court has directed that the name of a Law Officer working with a public sector undertaking be included in the final list of Delhi Higher Judicial Services, 2022 examination after ruling that he fulfils the mandatory requirement of "continuously practicing as an advocate for not less than seven years.”A division bench of Justice Najmi Waziri and Justice Vikas Mahajan...
The Delhi High Court has directed that the name of a Law Officer working with a public sector undertaking be included in the final list of Delhi Higher Judicial Services, 2022 examination after ruling that he fulfils the mandatory requirement of "continuously practicing as an advocate for not less than seven years.”
A division bench of Justice Najmi Waziri and Justice Vikas Mahajan granted relief to Ashish Rastogi who challenged the final result notice of the examination dated November 10, 2022, insofar as it rejected his candidature for appointment to DHJS.
Rastogi was working as a Law Officer with the Steel Authority of India (SAIL) since 2010. He graduated in 2010 and got enrolled with the Bar Council of Uttar Pradesh in May that year.
It was Rastogi’s case that after his appointment with SAIL as Jr. Manager (Law), he started appearing and pleading on behalf of the PSU before various courts, tribunals and quasi-judicial fora. He also cleared the All-India Bar Examination in March, 2011, and was awarded a Certificate of Practice by the Bar Council of India.
Rastogi scored a total of 623.5 marks out of 1000 marks in the DHJS 2022 examination and was amongst the 44 candidates shortlisted for interview. It was his case that while he ought to have been ranked 17th in the final list, the same was not done.
The High Court’s administration contended that Rastogi failed to place on record any documentary evidence to the effect that he was engaged by his employer predominately in the capacity to plead as an advocate in courts and Tribunals on employer’s behalf.
Relying on various judgments which dealt with the issue of seven years of continuous practice as an advocate or a pleader immediately preceding the recruitment exercise, the bench observed that Rastogi’s duties were predominantly of an advocate.
The court noted that Rastogi appeared substantively as an advocate for his employer in cases or had been an assisting counsel and that his nomenclature of Law Officer would not make any difference to his predominant work of acting or pleading as an advocate.
Noting further that the Bar Council of Uttar Pradesh recognised and certified Rastogi as an advocate despite his full-time employment with SAIL, the bench said:
“The Bar Council of Uttar Pradesh has duly considered the case of the petitioner as being a Law Officer working with SAIL since July, 2010 and has certified him as a practicing advocate especially in the light of Rule 11 of the Enrolment Rules framed under section 28(2)(d) and section 26 of the Advocates Act, 1961. The residuary exemption clause (vi) under Rules 47 and 11 are identical. The Enrolment Rule 11 and Certificate of Practice as an advocate, has been issued by the State Bar Council. Clearly the Bar Council of Uttar Pradesh has examined and taken a conscious and specific decision that the bar to Rule 11 will not apply to the petitioner.”
Setting aside the rejection of Rastogi’s candidature as notified in the impugned final result notice, the court directed the High Court’s administration to modify the notice by including his name at serial number 17 or higher, in the list of successful candidates.
“In any case, the petitioner is far more meritorious than the last person in the list who has secured only 530.5 marks. Surely, merit would always be preferred and not become a victim to nomenclatures such as Advocate and Law Officer. The amended Final Merit List/Result shall be published within four weeks of receipt of this order,” it said.
Title: ASHISH RASTOGI v. HONBLE HIGH COURT OF DELHI & ANR.
Citation: 2023 LiveLaw (Del) 258
Click Here To Read Order