Bombay High Court
Sachin S/O Bhimrao Suryawanshi vs The State Of Maharashtra And Ors on 4 December, 2014
Bench: Anoop V. Mohta
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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.
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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 :
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"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
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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
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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
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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.)
