The Patna High Court recently held that judicial officers, who opted to be appointed in subordinate judicial services cannot stake claim of "past experience" of being an advocate for being promoted to direct recruitment from the Bar as a District Judge (Entry Level).
A division bench comprising of Justice Shivaji Pandey and Justice Partha Sarthy observed that a candidate sitting for direct recruitment examination from the Bar has to remain an advocate with 7 years of experience not only at the time of cut off date but also at the stage of his appointment.
The observation came while the Court dismissed a petition filed by one Sunil Kumar Verma who cleared all the three stages of District Judge (Entry Level) Direct Recruitment from Bar examination having 7 years of experience as an advocate. However, simultaneously he also cleared UP Judicial Services (Junior Division) before his appointment as an Additional Sessions Judge for which a resignation was tendered which was accepted. Later, he was appointed as Additional Sessions Judge in Begusarai.
Brief Facts of the case
The petitioner was an advocate enrolled in 2007 with the UP Bar Association and remained in practice till the 15th January 2017. The Patna HC vide notification dated 22nd August 2016 had notified 98 vacancies for the post of District Judge (Entry Level), Direct From Bar Exam as on 31st March 2017. According to one of the terms and conditions mentioned in the said notification, it was mandated that the candidate must possess 7 years of practice including appearance in at least 24 cases per annum preceding 3 years on last date of receipt of the application.
The petitioner filled the form and applied for the post on 31st August 2016 and succeeded in all the three stages of the examination i.e. preliminary, mains and interview stages. However, in the meanwhile, he was also selected on 16th January 2017 in the UP Judicial Services (Junior Division).
Final result was published by the Patna High Court on 21st March 2018 showing his name at serial no. 50. Thereafter the petitioner joined the judgeship of Begusarai as Additional District Judge.
A show cause letter was then issued to him by the High Court dated 18th May 2020 stating that he was not a practicing advocate on the date of the tests (all three stages) therefore he was ineligible to be appointed as ASJ against the Bar quota in light of the judgment passed by the Supreme Court in Dheeraj Mor v. High Court of Delhi (2020). A representation was then made by the petitioner which was rejected on 17th December 2020.
Submissions of the Parties
It was the case of the petitioner that in terms of the advertisement notification, he successfully fulfils all the conditions of having 7 years of experience as an advocate as on the cut off date and that the same cannot be re-shifted on the date of prelims, mains and interview exams.
Moreover, it was also submitted that the judgment in Dhreeaj Mor case could not be applied in his case as it was based on different set of facts, dealing with a person who was in service on the cut off date whereas he was an advocate on the cut off date. Therefore, the petitioner argued that the bar prescribed under Article 233(2) of the Constitution of India will not come in operation against him.
On the other hand, it was the case of the counsel appearing on behalf of the High Court that for the direct recruitment from the Bar to the post of District Judge (Entry Level), a person must have 7 years of experience not only on the cut off date but he will remain as such on the date of examination as well as on the date when he has been appointed which was not so in the present case as the petitioner had joined the UP Judicial Service thereby ceasing to be considered for the Post of District Judge.
Moreover, it was submitted that the word 'appointment' used in Art. 233 would take its color and interpretation according to its placement in the Constitution and intention derived from the Constitution.
Observations of the High Court
On Interpretation of the Constitution
Stressing on the importance of constitutional interpretation, the Court began by observing that:
"The Courts, being alive to their constitutional sensibility, do possess a progressive outlook having a telescopic view of the growing jurisprudence. The Court should not be oblivious of the idea, being the final arbiter of the Constitution, to strike the requisite balance whenever there is a necessity, for the Founding Fathers had wisely conceived the same in various articles of the grand fundamental document. The Constitution itself has its own intrinsic force and its wisdom that any words and phrase used in the part of Constitution has its own fragrance and ideology than that of the same words and clause used in another place of the Constitution takes its different color and shade as it conceptually and sensibly derive in a manner that the words or clause has been mentioned and to be exposited in consideration to the subject and context has to be given full color according to its requirement and necessity."
While observing so, the Court went ahead to interpret Art. 233 with regards to the recruitment of District Judge, Entry Level (Direct from the Bar).
The Court after relying on catena of judgments held that those who are in the stream of advocate, have to remain in the same stream and the Judicial Officers who opted to be appointed in the Subordinate Service, have to claim to be appointed by way of promotion and they cannot stake claim to be taken into consideration the past experience as that experience will not make him eligible for consideration for appointment in the direct recruitment.
Moreover, the Court clarified that such person has to remain as an advocate with an experience of 7 years not only at the time of cut-off date but also at the stage of his appointment.
After applying the said observation to the present case, the Court while rejecting the petitioner's claim observed thus:
"In the present case, admittedly the petitioner before joining the subordinate service i.e. on cut-off date, he filled up the form, had mentioned the experience of 7 years but, thereafter, he was selected in the Uttar Pradesh Judicial Service, he joined and continued to remain in service. At the same time, he appeared in the examination against the advertisement published for direct recruitment from the Bar as a District Judge in which he was finally selected but, on the date of result, he was in judicial service of the State of Uttar Pradesh. Later on, he tendered his resignation which was accepted and he joined and, accordingly, posted at Begusarai. So, admitted position is that in continuity he remained as a member of judicial service after his selection as a Subordinate Judicial Officer except after acceptance of his resignation till his joining, it is so close, he cannot claim to again became an advocate and, there is no evidence to show that he in between the period had made an application before the Bar Council and obtained permission for his practice."
Application of Dheeraj Mor Judgment to the Present Case
The Court was of the opinion that the judgment in Dheeraj Mor case will apply to that of the petitioner as the judgment has not been given a prospective overruling.
In view of the said observations, the Court dismisses the petition after observing that:
"When law is very clear right from the beginning, the petitioner cannot be allowed to stake claim of being appointed as a District Judge from the stream of advocate and it has to be confined to those advocates who continues to be an advocate all through and also at the time of his appointment."
Title: Sunil Kumar Verma v. State of Bihar & Ors.