The division judge bench of Justice Augustine George Masih and Justice Lalit Batra of the Punjab and Haryana High court in the case of Hardeep Kaur Vs Punjab and Haryana High Court, Chandigarh, and another held that a candidate who might be eligible on the cut-off date being an Advocate with 7 years practice but at the time when the appointment is to be made as a District Judge, if he has joined service with Judiciary or another service of the Union or State is not eligible to be appointed as District Judge by way of direct recruitment.
BRIEF FACTS
The factual matrix of the case is that the petitioner was ranked No. 8 in the select list of candidates for the eight advertised General category posts and was declared qualified for consideration for appointment to the position of Additional District Judge, HSJS. The petitioner, who was ranked No. 8 and the final applicant in the General category, was not offered an appointment to the position due to the pending status of one of Nidhi's writ petitions. Instead, the position remained unfilled while the writ petition was being processed. In April 2014, the other chosen candidates began working as additional district judges in the State of Haryana. The petitioner had also taken part in and been chosen for the Delhi Higher Judicial Services selection process, which was finalized in the interim. She began serving as an additional district judge and is still doing so. The Hon'ble Supreme Court dismissed the writ petition and the SLP challenged the aforementioned Division Bench of this Court judgment, thereby paving the way for consideration of the petitioner for appointment to the 8th general category post, which remained vacant due to the pending writ petition. The petitioner filed a statement outlining her move from Chandigarh to Delhi and her desire to pursue her claim for appointment to the position in question. In response to the aforementioned communication, the High Court gave her the choice of joining HSJS if the position were to be made available to her right away. She responded via communication and requested that the option to join HSJS be kept open. This request was considered, but it was denied and relayed to the petitioner. After that, the petitioner submitted another statement in which she disclosed for the first time that she had joined the Delhi Higher Judicial Services and was still employed there. She also reiterated that the option to join HSJS may be kept open until the position is made available to her and that she intended to express her will through the appropriate channels. The High Court communicated its decision to reject the petitioner's stated representation.
The learned counsel appearing on behalf of the petitioner has contended that the selection process of superior judicial services was going simultaneously in both the states of Haryana and Delhi. The petitioner is a resident of Haryana and was always inclined to take up the appointment in Haryana. It is during the interregnum that she was selected and offered an appointment in the Delhi Higher Judicial Services where she joined as an Additional District Judge and continued thereafter. It is immediately after the dismissal of the writ petition that the petitioner submitted a representation highlighting the aspect of change of address for future communication which clearly indicates her interest in joining the post. Further, in the absence of an offer of appointment, the petitioner had requested for keeping the option open till the offer of appointment against the post is given to her. For reasons beyond the control of the petitioner, she could not be held responsible and cannot be denied the rightful claim for appointment to the post against which she had been duly elected, and willingness to join had also been sought by the High Court.
The learned counsel further attempted to contend that where a candidate is eligible on the last date of receipt of applications i.e. the cut-off date and even at the time when the selection process is completed she continues to be an Advocate and therefore, eligible for appointment as District Judge under Article 233 of the Constitution of India, the subsequent appointment to the Judicial Services and that too at the same level but in a different State, cannot be a ground for holding the said candidate to be an in-service candidate or a Judicial Officer on the date when the offer of appointment is made. There is no other disqualification that has been attached or projected by the High Court except for this.
The learned counsel appearing on behalf of the respondent has contended that the petitioner has not put forth a clear willingness to join the post. Her response has been evasive and with an intention to gain time. It was also submitted that in the initial response she didn’t even disclose the fact that she had been selected and had joined as Additional District Judge in the Delhi Higher Judicial Services and the fact was disclosed by the petitioner in the 3rd communication and even in that it was not clearly shown by the petitioner her willingness to join the post. It was further submitted that for direct recruitment as District Judge against the quota fixed for Advocates/Pleaders, an incumbent has to be a practising Advocate and must be in practice as on the cut off date and also at the time of appointment, he must not be in Judicial Services or other services of Union and the State.
COURT’S OBSERVATION
The hon’ble high court held that there has been an indication on the part of the petitioner showing her inclination but in none of these communications, she had, in categoric and clear terms, stated that she is willing to join HSJS. What was expected and enquired of her was a simple response as to whether she was willing to join HSJS in case the post is offered to her. A categoric 'Yes', if she was interested, was expected of her which she failed to state in all her communications. The language used in the representations received from her is evasive and non-committal leading the High Court to a conclusion that the petitioner is probably not interested and the reason was apparent that she had already joined the Delhi Higher Judicial Services and had been continuing there. The decision of rejection of her option of being kept open to join, therefore, appears to be quite justified.
The court relied upon the judgment titled Dheeraj Mor Vs. Hon'ble High Court of Delhi.
It was further held that it is clear that a candidate is not only required to be qualified on the last date of receipt of the applications i.e. the cut off date fixed under the Rules which mandate experience of 7 years of practice as an Advocate but is continuing to be a practising Advocate on the date of appointment. A candidate who might be eligible on the cut off date being an Advocate with 7 years practice but at the time when the appointment is to be made as a District Judge, if he has joined service with Judiciary or other service of the Union or State is not eligible to be appointed as District Judge by way of direct recruitment. Petitioner, being in service as an Additional District Judge in the Delhi Higher Judicial Services, would not be eligible for appointment as District Judge and thus, cannot be granted the relief as has been claimed.
CASE NAME- Hardeep Kaur Vs Punjab and Haryana High Court, Chandigarh, and another
CORUM- Justice Augustine George Masih and Justice Lalit Batra
DATE- 30.09.22
CITATION- CWP No.8817 of 2019
Picture Source :
