bsb 1 WP10930.14.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10930 OF 2014
Mr.Sachin Bhimrao Suryawanshi,
Working as Asstt. Public Prosecutor,
Quarter No.204, Chandra Bldg.,
Govt. Quarters, Hingar Road,
D.S.P. Chowk, Ahmednagar. ... Petitioner
Vs
1. The State of Maharashtra,
through Principle Secretary,
Law & Judiciary Mantralaya, Mumbai-32.
2. The High Court of Judicature at Bombay
through The Registrar General,
High Court, Mumbai.
3. The Registrar General,
High Court of Judicature at Bombay.
4. The Registrar (Legal & Research),
High Court of Judicature at Bombay. ... Respondents
Mr.Surel S. Shah, Advocate i/by Mr.S.M. Kulkarni for the Petitioner.
Mr.C.P. Yadav, A.G.P. For Respondent No.1 State.
Mr.M.S.Karnik, for Respondent Nos.2 to 4.
CORAM: ANOOP V. MOHTA &
N.M.JAMDAR, JJ.
DATED: 4 DECEMBER, 2014.
::: Downloaded on - 10/12/2014 23:46:16 :::bsb 2 WP10930.14.doc ORAL JUDGMENT (Per Anoop V. Mohta, J.):
Rule. Rule made returnable forthwith. Heard finally by the consent of parties.
2. The Petitioner prays by invoking Article 226 of Constitution of India that she should be declared as qualified for appearing for the Examination for the Post of District Judge advertised by Press Advertisement No.A.5504/2014 dated 30 June 2014; and the qualification so declared be revoked and cancelled; and a liberty be granted to allow to appear and participate in the Examination process.
3. There is no dispute with regard to the duration of practice and the stages in which Petitioner practiced as an Advocate those are as under :
"1. From 17-09-2001 to 05.04.2007 worked as Advocate before High Court of Bombay Bench at Aurangabad and Nagpur.
2. From 05.04.2007 to 31.03.2009 worked as Legal officer in M.S.E.B.
3. From 02.04.2009 till today working as Assistant Public Prosecutor, Grade-A.
4. The eligibility criteria for the post in question is as under :
::: Downloaded on - 10/12/2014 23:46:16 :::bsb 3 WP10930.14.doc "Applications in the prescribed form are invited online from eligible candidates for 17 vacancies for the posts of District Judge, in the Judicial Service of the State of Maharashtra in the pay scale of Rs.51550-1230-58930-1380-63070 + dearness allowance and other allowances as admissible under the Rules.
Eligibility criteria
1) A candidate must be a citizen of India
2) A candidate must be -
(a) a holder of Degree in Law
(b) practising as an Advocate in the High Court or Courts subordinate thereto for not less than seven years on the date of publication of Advertisement and in computing the period during which a candidate has been an Advocate there shall be included any period during which he has held the post of a Public Prosecutor or Government Advocate or Judicial Officer.
OR Must be working or must have worked as Public Prosecutor or Government Advocate for not less than 7 years in the post or posts on the date of publication of advertisement. In computing the period of 7 years, the period during which the candidate has worked as an Advocate shall also be included.
5. In view of above admitted position, it is clear that the Petitioner was not practicing as an Advocate "for not less than 7 years on the date of publication of advertisement". The plain reading of this clause is, rightly contended by the learned counsel appearing for the Respondent in support of the action of disqualification, so taken by the Respondent. It is further submitted ::: Downloaded on - 10/12/2014 23:46:16 ::: bsb 4 WP10930.14.doc that no case to interfere in the decision so taken.
6. The reference is made also to a Supreme Court decision in the case of Deepak Aggarwal v/s Keshav Kaushik and others 1 referring Article 233(2) of the Constitution of India, which is the basic foundation for such judicial service "post/appointment". Paragraph No.88 clinches the issue in favour of Respondent and against the Petitioner which is as under :
"88. As regards construction of the expression, "if he has been for not less than seven years an advocate" in Article 233(2) of the Constitution, we think Mr.Prashant Bhushan was right in his submission that this expression means seven years as an advocate immediately preceding the application and not seven years any time in the past. This is clear by use of 'has been'. The present perfect continuous tense is used for a position which began at some time in the past and is still continuing. Therefore, one of the essential requirements articulated by the above expression in Article 233(2) is that such person must with requisite period be continuing as an advocate on the date of application."
7. The submission of learned counsel appearing for the petitioner referring to above clause 2(b) that the petitioner worked as Assistant Public Prosecutor Grade-A from 2 April 2009 till the date of application need to be computed along with his practice from 17 September 2001 to 5 April 2007 as an advocate, is also unacceptable. The plain reading of clause 2(b) made it clear that a candidate must be practicing as an advocate in the High Court or Courts subordinate thereto for not less than seven years on the date of publication of advertisement. For computing the period of seven 1 -2013 (1) SCALE page 564 ::: Downloaded on - 10/12/2014 23:46:16 ::: bsb 5 WP10930.14.doc years, the working as Public Prosecutor or Government Advocate and practicing as Advocate preceding the publication, needs to be included. The admitted break in the present case, as worked from 5 April 2007 to 31 March 2009, as Legal Advisor in M.S.E.B., which cannot be treated as practicing advocate or working as prosecutor for the prescribed continuous period, preceding the advertisement.
8. Taking totality of the matter dealing the rule in question and the Supreme Court judgment so referred above and the intention behind it for insistence of seven years' continuous practice, just cannot be overlooked. The admitted position so referred above, dis-entitle him to claim seven years' continuous practice on the date of application as contemplated and referred above. We have interpreted the same rule in Writ Petition No.10690 of 2014 between Smt.Monica d/o Pradeepkumar Pole v/s Hon'ble High Court of Mumbai, delivered on 27 November 2014, and not granted the similar relief.
9. The other submission that the last time the petitioner applied and attempted for the same and admission card was also issued, but could not succeed in the examination. That in our view cannot be the reason in the present facts and circumstances as the respondents, after advertisement and before issuing admission card, have scrutinized individual files and after considering the eligibility, prepared the list of candidates not found eligible to the post of District Judge and accordingly taken decision and declared ::: Downloaded on - 10/12/2014 23:46:16 ::: bsb 6 WP10930.14.doc the petitioner not eligible. There is nothing wrong in it by adopting this procedure also and preparing the list of candidates eligible and non-eligible.
10. The Petitioner was not continuously in practice as an Advocate or Public Prosecutor preceding 7 years, on the date of advertisement in question. The action of disqualification is well within the frame of law and the record.
11. Therefore, in view of above, there is no case made out to interfere with the decision so taken. Petition is dismissed. No costs.
(N.M.JAMDAR, J.) (ANOOP V. MOHTA, J.)
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