Bombay High Court
Smt. Monica Pradeepkumar Pole vs The Honble High Court Of Mumbai on 27 November, 2014
Bench: Anoop V. Mohta
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Sequeira
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10690 OF 2014
Smt.Monica D/o Pradeepkumar Pole
D/o Pradeepkumar K.Pole,
Row House No.29, Emerald City,
Near Janaki Hotel, Garkheda,
Aurangabad - 431001 .. Petitioner
Vs
The Honble High Court of Mumbai
Represented by The Registrar General,
Mumbai. .. Respondent
Mr.Tejesh Dande i/by Tejesh Dande & Associates, for Petitioner.
Mr.M.S.Karnik, for Respondent.
CORAM: ANOOP V. MOHTA &
N.M.JAMDAR, JJ.
Thursday 27 November, 2014.
Oral Judgment : (Per Anoop V. Mohta J.)
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.
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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. 17-09-2001:-Enrolled as Advocate on the roll of the Bar
Council Of Maharashtra & Goa.
2. 18th September 2001 to November 2004:- Started practicing
before Hon'ble High Court of Judicature of Bombay Bench at
Aurangabad and Hon'ble High Court of Andhra Pradesh at
Hyderabad.
3.
26-12-2004 to 01-09-2006:- Worked as Judicial Magistrate
First Class & CJJD at Nanded.
4. 02-09-2006 to 08-06-2008:- Worked as Judge Co-operative
Court Nanded.
5. 09-06-2008 to 26-05-2009:- Worked as Judicial Magistrate
First Class & CJJD at Hinganghat Dist.Wardha.
6. 26-05-2009:- Relieved from the post of Judicial Magistrate
First Class & CJJD at Hinganghat Dist.Wardha vide order
no.CJM1509/750/(100)-3 dated 19-05-2009 in view of
resignation dated 08-04-2009.
7. After relieving Till 31-09-2009:- Worked as Human Resource
manager at Opulentus Overseas a small consultancy.
8. 05-10-2009 to 31-01-2012:- Worked as Legal Associate at
Quislex Legal Services Pvt. Ltd. At Hyderabad.
9. From 1-02-2012 till date:- Practicing before Hon'ble High
Court of Judicature of Bombay Bench at Aurangabad and
Hon'ble High Court of Andhra Pradesh at Hyderabad also
rendering professional assistance to lawyers in different cities
into briefing and drafting .
Submitted by:- "
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4 The eligibility criteria for the post in question is as under :
"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.
(c) Age:- Must have attained the age of thirty-five years and
must not have attained the age of forty-eight years in the case
of candidates belonging to communities recognized as
backward by the Government for the purpose of recruitment
and forty-five years in the case of others, as on the date of
publication of Advertisement."
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
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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 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 Vs 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 Petitioner was not continuously in practice as an Advocate,
preceding 7 years, on the date of advertisement in question. The action of
disqualification is well within the frame of law and the record.
8 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.
1 -2013 (1) SCALE page 564
