Sunil Kumar Verma vs The State Of Bihar
2021 Latest Caselaw 1893 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.8306 of 2020
     ======================================================

Sunil Kumar Verma, Aged about 40 years, Male, Son of Sohan Lal Swarnkar Resident of 8-C/3, Awas Vikash Colony, P.S.- Jhunsi, District- Allahabad (Uttar Pradesh).

... ... Petitioner/s Versus

1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.

2. The Principal Secretary, General Administration Department, Government of Bihar, Patna.

3. The Patna High Court Through The Registrar General, Patna High Court, Patna.

... ... Respondent/s ====================================================== Appearance :

     For the Petitioner/s     :     Mr. Sandeep Kumar, Adv.
                                    Mr. Alok Kumar Shahi, Adv.
     For the State            :     Mr. P.K. Verma, Sr. Adv.
                                    Mr. Anand Kumar, AC to AAG3
     For the High Court       :     Mr. Piyush Lall, Adv.

====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY and HONOURABLE MR. JUSTICE PARTHA SARTHY CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE SHIVAJI PANDEY)

Date : 08-04-2021 Heard learned counsel for the parties.

The petitioner was the Judicial Officer, has challenged

the letter no. 23842 dated 18.5.2020 and letter no. 24973 dated

1.6.2020 issued by the Patna High Court (this Court) by which a

show-cause notice was issued to the petitioner in view of the

judgment of Hon'ble Apex Court passed in the case of Dheeraj

Mor Vs. High Court of Delhi along with Prem Shankar & Ors. Vs.

High Court of Patna & Anr. reported in (2020) 7 SCC 401 as to

why his services from the post of Additional District and Sessions Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

Judge be not terminated assigning reason that the petitioner was

not a practicing advocate on the date of preliminary test, main test,

interview and declaration of final result as well as on the date of

his appointment as an Additional District and Sessions Judge and,

at later stage, the petitioner filed interlocutory application bearing

I.A. No. 1/2020 by which he has sought amendment of the writ

petition in order to bring new developmental fact as has been

informed vide letter dated 22.9.2020 that the response/submission

of the petitioner has been rejected by this Court and further I.A.

No. 2/2020 has been filed by which he has made a prayer for grant

of interim relief that during pendency of this writ application, no

order of termination be passed against the petitioner and again I.A.

No. 3/2020 has been filed by which a prayer has been made for

quashing the notification no. 7 dated 17.12.2020 along with letter

dated 4.1.2021 by which the petitioner has been terminated from

service and communicated at his place of posting at Begusarai

respectively.

The short fact of this case is that the petitioner has

enrolled himself in Bar Council of Uttar Pradesh vide Enrollment

No. 7938 of 07 dated 5.12.2007 and joined the State High Court

Bar Association, Allahabad on 5.12.2007 and remained in practice

till 15.1.2017. During that period, he was appearing in various Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

competitive examination such as PCS-J and District Judge (Entry

Level) Direct from Bar Exams at different States. This High Court

had issued an advertisement for recruitment of suitable candidates

to the post of District Judge (Entry Level), Direct From Bar Exam-

2016 on its website dated 22.8.2016 notifying 98 vacancies as on

31.3.2017. One of the terms and conditions was mentioned therein

that the candidates must possess 7 years practice including his

appearance at least in 24 cases per annum preceding three years on

the last date of receipt of the application as specified in the

advertisement and further condition was provided that the

candidate must have completed 35 years of age and who has not

completed the 50 years as on 1.1.2016, shall be eligible for

consideration. The cut off date for the purpose of consideration of

eligibility of the application was fixed as on 16.9.2016. In

pursuance of the advertisement, the petitioner applied for the said

post on 31.8.2016 before the last date i.e. 16.9.2016. While filling

up the form, he has also obtained experience certificate from the

Registrar, High Court showing his professional experience of

seven years on or before the cut off date. It has to be noted that the

petitioner had also applied in U.P. Judicial Services (Junior

Division), where he was selected on 16.1.2017 and, accordingly,

he joined the judicial services (Junior Division) in the state of Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

Uttar Pradesh and, as per petitioner, on or before the cut off date,

he was not in any service either judicial or otherwise. Further that

the condition does not stipulate in the advertisement that candidate

who has joined judicial service or in any services later on would be

made ineligible for the consideration of the said post. The

petitioner succeeded in preliminary examination as well as in the

main examination. After the main examination, this Court

published notice in its website dated 9.2.2018, giving liberty to the

candidates to remove defects and discrepancies in the application

form. In the notice, it has been mentioned that on scrutiny of the

application forms and documents uploaded by the candidates who

have qualified in the main (Written) examination of District Judge

(Entry Level), Direct from Bar, 2016, certain discrepancies have

been found. The same have been indicated against respective

candidates in the chart attached herewith.

The candidates were directed to do the needful and

clause-3 prescribes that the candidates in respect of whom

clarification was required regarding enrollment/experience

certificates, may clarify their position on affidavit which they shall

bring at the time of interview and clause-4 provides that the

candidates who are judicial officers and also those who are serving

in some other organization having 7 years of experience as Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

advocate are provisionally allowed to appear at the interview and

their candidature shall be considered later on in the light of the

legal position settled bythe Hon'ble Supreme Court in the cases of

Deepak Aggrawal vs. Keshav Kaushik and Others, Civil Appeal

No. 561 of 2013 (arising out of SLP (C) No. 17463 of 2010) and

Vijay Kumar Mishra & Another Vs. High Court of Judicature at

Patna & Ors., Civil Appeal No. 7358 of 2016 (arising out of SLP

(C) No. 17466 of 2016). In clause-7, it has been mentioned that the

candidate having roll no. 15395 has been held ineligible to appear

in interview because of not having 7 years of experience as

advocate as because being in full time corporate employment

having not practiced as advocate and also in view of Rule 49 of the

BCI Rules.

The claim of the petitioner is that on the cut off date, he

was possessing the essential qualification of 7 years of experience

as an advocate and the cases mentioned in the notice does not

apply to the case of the petitioner as the fact in those cases were

quite different.

The names attached with this notice contains the name

of the petitioner at serial no.93 wherein in the column, it has been

mentioned that the experience certificate dated 19.01.2018 shows

he has practiced as an advocate from 5.12.2007 to 15.1.2017only Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

and it appears that from the letter dated 21.1.2018 issued by the

Bar council of UP in favor of the petitioner that presently he has

surrendered his certificate to Bar Council. The Patna High Court

published the final result in its website on 21.3.2018 comprising of

successful 98 candidates. The petitioner was declared successful

and his name finds place at serial no. 50. At the bottom of the

result, it has been mentioned that recommendation of the

candidates bearing Roll Nos. 13869 & 12239 at merit position no.

61 & 67, respectively is kept pending and shall be considered only

after final decision of the Hon'ble Supreme Court in SLP © No.

14156/2015. Further, it has been mentioned that the candidates,

with curable defects in their applications/documents, will have to

rectify the defect(s) within the time granted to them failing which

their respective recommendation/appointment would be canceled.

The details of such candidates shall be uploaded on the website of

the Court shortly, followed by letter of appointment vide Memo

No. 6909 dated 28.5.2018 in turn, he tendered resignation, which

was accepted. Thereafter, he joined the judgeship of Begusarai as

Additional District Judge and was discharging the duty

satisfactorily.

A show-cause letter dated 18th May, 2020 was issued to

the petitioner through District & Sessions Judge, Begusarai, was Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

served upon the present petitioner mentioning therein that the

petitioner does have 7 years experience as on 16.9.2016 on the

date of filing the application for District Judge (Entry Level),

Direct from Bar Exam.-2016. Subsequently, he had joined the

judicial service with effect from 16.1.2017, thereafter, he

appeared in preliminary examination and mains examination held

on 23.7.2017 and 8.10.2017 respectively. He participated in the

interview held on 14.2.2018, after declaration of final result on

21.3.2018 and subsequent notifications of appointment and posting

issued by General Administration Department, Government of

Bihar dated 28.5.2018 & 7.8.2018 respectively, he joined as

Additional District & Sessions Judge, Begusarai on 21.8.2018. It

has further been mentioned that he was not a practicing Advocate

on the date of Preliminary Test, Main (Written) Examination,

Interview and declaration of final result as well as on the date of

his appointment as an Additional District & Sessions Judge.

Therefore, he was ineligible to be appointed as Additional District

& Sessions Judge against the quota for Bar on the date of joining

in the service in the light of judgment dated 19.2.2020 passed in

Dheeraj Mor case (supra) of the Hon'ble Supreme Court and

directed the District & Sessions Judge, Begusarai to take response

from Sri Sunil Kumar Verma (petitioner) as to why his services be Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

not terminated from the post of Additional District & Sessions

Judge. Ultimately, he filed a representation dated 8.9.2020 but, his

representation was rejected vide letter dated 22.9.2020 (Annexure-

8) and, finally, the petitioner has been terminated from service vide

Memo No. 12094 dated 17.12.2020 (Annexure-12) which is under

challenge through I.A. No. 03 of 2021.

This Court in the administrative side filed the counter

affidavit, has given details of the event relating to recruitment of

District Judge (Entry Level), Direct From Bar Exam-2016. It has

been stated that the advertisement was published on 22.8.2016

inviting application from the eligible candidates for direct

recruitment to 98 vacancies as on 31.3.2017, the time was allowed

to submit online application forms from 22.8.2016 to 16.9.2016.

On 15.9.2016, a corrigendum to the said advertisement was issued

making a statement interalia that original certificates from the

candidates regarding eligibility shall be requisitioned after the

result of the main (written) examination in respect to the qualified

candidates. In pursuance to the advertisement, the petitioner

applied for the post online on 31.8.2016, as he was enrolled as an

advocate with the Bar Council of Uttar Pradesh on 5.12.2007, he

joined the High Court Bar Association on the same day. Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

A writ petition was filed before the Hon'ble Apex Court

by the Judicial Officers of the State of Bihar and Uttar Pradesh

bearing W.P.(S) No. 733 of 2016, Prem Shankar and Ors. Vs.

Hon'ble High Court of Judicature at Patna and another seeking a

relief for declaring Rule 5 of the above 1951 Rules as ultra vires to

the Constitution to the extent it prescribed promotion as the only

mode of appointment for Judicial Officers of Subordinate

Judiciary of the State of Bihar to the Higher Judicial Service and to

consequently declare them eligible to appear in the forthcoming

District Judge Entry Level (Direct from Bar) Examination, 2016.

The claim has been made that had Rule 5 of the 1951 Rules

precludes the Judicial Officers for direct appointment to Higher

judicial Service by taking examination along with advocates

eligible after 7 years of practice and reserving the said process of

recruitment for members of the Bar, is complete failure to the

object sought to be achieved. It has further been stated that

identical matter is pending before Hon'ble the Apex Court in Writ

Petition (Civil) No. 414 of 2016 (Dr. Anil Kumar Singh Vs.

Hon'ble High Court of Allahabad and another and S.L.P. (Civil)

No. 14676 of 2015, Dheeraj Mor Vs. Hon'ble High Court of Delhi.

The Hon'ble Supreme Court vide order dated 27.9.2016 passed an

interim order directing that the petitioners be allowed to appear in Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

the District Judge Entry Level (Direct from Bar) Examination,

2016 subject to the two conditions being (i) they make an

application before the Registrar General, Patna High Court within

one week from today and (ii) upon scrutiny of applications, the

Registrar General finds the petitioners to be within the upper age

limit prescribed for the examination and further directed for listing

the W.P.(Civil) No. 414 of 2016 and other connected cases along

with the aforesaid case. The two candidates of the preceding

selection process by direct recruitment to the Bihar Superior

Judicial Service against 25% posts reserved for eligible advocates

vide Advt. No. 01/2015 dated 5.1.2015 moved the Hon'ble

Supreme Court vide Civil Appeal No. 7358 of 2016, Vijay Kumar

Mishra and another Versus High Court of Judicature at Patna and

others raising grievance against the decision of this Court as

communicated under letter dated 16.2.2016 (and also the judgment

and order dated 12.5.2016 passed in C.W.J.C. No. 3504 of 2016

filed by them before the Hon'ble Court in this regard) by which

they were not granted permission to appear in the viva voce test on

the plea that when the selection process was going on, they had, in

the meantime, joined as Judicial Officers in the Bihar Judicial

Service i.e. on the post of Civil Judge (Junior Division) but, they

had option to resign and appear in the said viva voce test. The Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

Hon'ble Supreme Court vide order dated 9.8.2016 passed in Civil

Appeal No. 7358 of 2016 (Vijay Kumar Mishra and another), held

that Article 233(2) of the Constitution of India prohibits the

appointment of a person as District Judge who was already in

service of the Union or the State but, not the

consideration/selection of such a person and that a person who is

already in service of either the Union or the State would still have

the option if selected to join the service as District Judge or

continue with his existing employment and accordingly they were

allowed to participate in the selection process under Advertisement

No. 01 of 2015 conducted by this Court without insisting upon

their resigning from the post of Civil Judge (Junior Division)

under the Bihar Subordinate Judicial Service as per the impugned

letter dated 16.2.2016 issued by this Court.

In connection with the present matter, the Standing

Committee of this Court in its Additional Agenda Item No.2

considered the representation of the petitioners (i.e. Judicial

Officers) of W.P.(C) No. 733 of 2016 (Prem Shankar and others) to

accept their candidature under the advertisement dated 22.8.2016

in view of the interim order dated 27.9.2016 of the Hon'ble

Supreme Court and the Standing Committee resolved to permit

them to appear in the District Judge (Entry Level) Direct from Bar Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

Examination, 2016, subject to the result of the said writ petition

filed by them. The Selection and Appointment Committee of this

Court considered the representation of number of candidates on

6.10.2016 with respect to advertisement dated 22.8.2016

requesting them to permit them to rectify the typographical errors

committed by them and allow them to upload their documents

which they could not upload or to allow them to deposit fee which

they were unable to deposit and the Committee resolved that in

view of the interim order of the Hon'ble Supreme Court dated

27.9.2016 passed in W.P.(C) No. 733 of 2016 (Prem Shankar and

others) serving judicial officers were allowed to participate in the

selection process against the aforesaid advertisement and the

online application portal was opened for limited period from

17.10.2016 to 29.10.2016 and all persons whose applications were

found defective would get an opportunity to rectify them and that

the same be notified.

Pursuant thereto the petitioners and a number of other

judicial officers submitted their applications for the said

examination under advertisement dated 22.8.2016. Before the

direct entry examination of District Judge level, the petitioner

participated in Civil Judge (Junior Division) Examination, in

which the final result was declared on 5.8.2016 in which the Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

petitioner was declared, selected and, accordingly, appointment

letter dated 22.12.2016 was issued in his favor and, pursuant

thereto, he joined the said post of Civil Judge (Junior Division) at

Gyanpur, Uttar Pradesh on 16.1.2017. In that view of the matter,

the petitioner ceased to be an advocate on 16.1.2017 within the

meaning of Article 233(2) of the Constitution of India.

Accordingly, on and after that date, he was no longer eligible

advocate as per the provisions of 1951 Rules to be considered for

appointment to the post of District Judge (Entry Level) under the

Bihar Superior Judicial Service by direct recruitment under 25%

quota reserved for practicing advocates of Bar. The preliminary

examination was conducted on 23.7.2017 and its result was

declared on 24.8.2017 and the petitioner was declared successful.

On 8.10.2017, the mains examination was held and its result was

declared on 16.1.2018 in which the petitioner was again declared

successful. The matter was taken up before the Hon'ble Supreme

Court and the same was pending before it in S.L.P. (C) No. 14676

of 2015 (Dheeraj Mor Vs. Hon'ble High Court of Delhi) and other

connected matters and relying on the judgment dated 9.8.2016

passed in Civil Appeal No. 7358 of 2016 (Vijay Kumar Mishra and

another) wherein the petitioners had claimed that they completed 7

years of practice as an advocate then they would be eligible Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

candidate despite the fact that on the date of

application/appointment, he was in service of the Union or State.

The Hon'ble Supreme Court vide order dated 23.1.2018 was

pleased to refer the matter before the appropriate Bench in view of

the fact that this case involves substantial question of law as to the

interpretation of Article 233 of the Constitution of India with an

observation that one major issue which arose for consideration was

whether the eligibility for appointment as District Judge is to be

seen only at the time of appointment or at the time of application

or both. On 8.2.2018, the Hon'ble Selection and Appointment

Committee considered the matter relating to discrepancies found

during scrutiny of the application forms and documents of the

candidates who had qualified in the mains (written) examination

under advertisement dated 22.8.2016 as placed before it in form of

a tabulated chart. With respect to the petitioner, the discrepancies

which were pointed out were that (i) his experience certificate

dated 19.1.2018 shows his practice as an advocate from 5.12.2017

to 15.1.2017 and (ii) it appeared from letter dated 21.1.2018 of the

Bar Council of Uttar Pradesh to him that presently he had

surrendered his enrollment certificate to the said Council. The

Committee also took into consideration that total 11 as per the

chart, qualified for interview and had 7 years of practice as an Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

advocate before they joined the Judicial Service and was pleased

to decide that they were to be provisionally allowed to appear at

the interview and their candidature shall be considered later on in

the light to the legal position settled by the Hon'ble Supreme

Court in the cases of Deepak Aggrawal Vs. Keshav Kaushik and

others, Civil Appeal No. 561 of 2013 and Vijay Kumar Mishra and

another Vs. High Court of Judicature at Patna and others, Civil

Appeal No. 7358 of 2016. The above decision dated 8.2.2018 was

notified by the Court vide Notice dated 9.2.2018 along with the

tabular chart showing the discrepancies in the application forms

and documents uploaded by the candidates who had qualified in

the mains written examination under the advertisement dated

22.8.2016. The name of the petitioner with his roll number was

also mentioned at serial no. 93 of the said chart, pointed out two

discrepancies and he was called upon to explain through an

affidavit to be placed at the time of interview. The notice made it

very clear that those judicial officers with 7 years of practice as an

advocate, they were allowed provisionally to appear in the

interview and their candidature shall be decided later on. The

petitioner appeared in the viva voce test on 14.2.2018 and, in terms

of the notice dated 9.2.2018, he produced the affidavit sworn by

him on 12.2.2018 explaining the fact as stated above that he was Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

enrolled as an advocate on 5.12.2007 and continued to practice as

an advocate from 5.12.2007 to 15.1.2017, he joined the Uttar

Pradesh Judicial Service as Civil Judge (Junior Division) on

16.1.2017, before his said joining, he had surrendered his

enrollment certificate to the Bar Council of Uttar Pradesh and in

the event of his selection, he would produce the same after

procuring it from the Bar Council. He also produced the certificate

dated 9.2.2018 issued by the Allahabad High Court vide letter

bearing memo no. 2375 dated 12.2.2018 wherein a statement was

made that the Court had no objection if the petitioner would

appear in viva voce test under the advertisement dated 22.8.2016.

After completion of the interview, the office of the Court placed

before the Selection and Appointment Committee the result of the

successful candidates for publication of the final result, the

Committee in its meeting dated 14.3.2018, approved the merit

panel of 98 successful candidates on the basis of marks obtained

by them. Those judicial officers who had been permitted to

participate in the selection process, the Committee took note of the

following facts - the previous decisions of the Court with respect

to them, as above; Rule 5(C) (iii) of the 1951 Rules read with

clause 3 of Appendix C thereto provided that 25% vacancies are to

be filled up by eligible advocates with not less than 7 years Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

practice and also decided that the applicants who were advocates

which term does not include the judicial officers, the interim order

dated 27.9.2016 passed by the Hon'ble Supreme Court in the case

of Prem Shankar and others, the judgment dated 9.8.2016 passed

by Hon'ble Supreme Court in the case of Vijay Kumar Mishra and

another, the order dated 21.1.2018 of the Hon'ble Supreme Court

by which it had referred the case of Dheeraj Mor to a larger Bench

and observed that a decision would have to be taken whether the

two judicial officers, namely, Lallan Kumar and Santosh Kumar

whose names were contained in the above merit list of 98

candidates be disqualified or their candidature be kept open until

disposal of Dheeraj Mor and other analogous cases. With respect

to the petitioner whose name was at serial no.50 of the merit list,

the Committee observed that though he has joined the U.P. Judicial

Service with effect from 16.1.2017 but, on the cut off date, he was

a practicing advocate and having 7 years of experience and thus,

his candidature was valid and was recommended for appointment.

The Full Court of the Court in its meeting dated 21.3.2018 vide

Agenda No.1 considered the above minutes of the Selection and

Appointment Committee.

The Full Court approved the list with the caveat with

respect to two candidates, namely, Sri Lallan Kumar and Sri Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

Santosh Kumar were permitted to participate in the selection

process, subject to final adjudication by the Supreme Court in the

case of Prem Shankar and Ors. along with Dheeraj Mor case.

Accordingly, their matter was kept pending and would be

considered only after decision of the Supreme Court in the

aforesaid case. The appointment of 98 candidates were directed to

be uploaded in the website of the Patna High Court and he found

himself to be recommended to the State Government for his

appointment to the post of District Judge (Entry Level) and, in

view of the recommendation of this Court, the State Government,

vide notification no. 6909 dated 28.5.2018, appointed 96

successful candidates on the post of Additional District Judge and

posted the petitioner at Begusarai. After his appointment on

28.5.2018 and posting on 7.8.2018 on the post of District Judge

(Entry Level) at Begusarai, the petitioner resigned from the post of

Civil Judge (Junior Division) in Uttar Pradesh Judicial Service on

17.8.2018 and joined on the said post at Begusarai on 21.8.2018.

The Hon'ble Supreme Court considered and interpreted Article

233(2) of the Constitution of India and vis-à-vis examined the

validity of the Rules of the various High Courts including the

members of judicial service staking their claim against the post

reserved for direct recruitment from the Bar which included the Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

validity of Rule 5(c) of the 1951 Rules in W.P.(C) No. 733 of 2016

as it excluded judicial officers from direct recruitment to Bihar

Superior Judicial Service. The Hon'ble Supreme Court has held

that the quota fixed for advocates/pleaders incumbent must be a

practicing advocate as on the cut-off date including at the time of

appointment he must not be in judicial service or other services of

the Union or State. The Hon'ble Supreme Court has further

pleased to hold that the law laid down in Civil Appeal No. 7358 of

2016 (Vijay Kumar Mishra and another), on the basis of

distinction between selection and appointment, that Article 233(2)

only prohibits appointment of a person as District Judge who is

already in service of the Union or State and it does not prohibit the

consideration of the candidature of a person who is already in

service of the Union or State and if such a candidate is selected

then he would have the option to continue with his existing

employment or join the service as District Judge is not correct law

thus overruled the said judgment. The Selection and Appointment

Committee in its meeting dated 6.5.2020 considered the matter

regarding appointment of judicial officers under District Judge

(Entry Level) Direct from Bar Exam, 2016 and in the light of the

judgment dated 19.2.2020 passed in Dheeraj Mor case with respect

to the present petitioner, it has been recorded that he was Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

practicing advocate for 7 years experience as on cut-off date.

Subsequently, he has joined the judicial officer in Uttar Pradesh

Judicial Service, thereafter, he appeared in the preliminary

examination and main examination on 23.7.2017 and 8.10.2017

respectively, participated in the interview on 14.2.2018 and the

result was published on 21.3.2018 and, subsequently, the

notification of posting was issued on 7.8.2018 and he joined the

post of Additional District and Sessions Judge, Begusarai on

21.8.2018 and, as such, he was not a practicing advocate on the

date of preliminary test, mains examination, interview and on the

date of appointment as Additional District and Sessions Judge,

Begusarai. The Committee took a view that he was/is ineligible to

be appointed as Additional District Judge against the quota from

Bar on the date of joining the service in the light of the aforesaid

judgment.

The matter was referred to the Standing Committee. The

Standing committee in its meeting dated 12.5.2020 vide Agenda

Item No.10 considered the minutes of the Selection Committee

dated 6.5.2020 related to appointment of judicial officers and

finally resolved that "The Committee deliberated upon the matter

and resolves to request the Hon'ble Selection & Appointment

Committee to opine after seeking response from the three Judicial Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

Officers namely, Sri Santosh Kumar, Sri Lalan Kumar and Sri

Sunil Kumar Verma, with regard to the implementation of the

judgment dated 19.02.2020 of the Hon'ble Supreme Court in

Dheeraj Mor case". Accordingly, a letter no. 23842 dated

18.5.2020 was issued to the petitioner to give response within a

period of four weeks. The petitioner made representation that the

records were lying in his native place or his place of posting in

Uttar Pradesh, as because of lock down, he was unable to procure

the documents, requested for one month to enable him to file his

explanation. His request was considered in the meeting dated

29.5.2020 and the Committee resolved to grant time of one month

to file his response. Again vide representation no.57 dated

30.6.2020, he requested for grant of suitable time to file his

response as on account of lock down due to Covid-19 pandemic,

he failed to procure the document, taking a plea that there is

suspension of train service till 12.8.2020. The matter was placed

before the Selection and Appointment Committee and the

Committee took a view that granting any further time to the

petitioner would amount to sitting over the decision of the Hon'ble

Supreme Court like an appellate authority and the same would be

futile exercise as the matter has attained finality in judicial side

and finally took a view that the petitioner was ineligible to be Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

appointed as Additional District & Sessions Judge against the

quota for Bar on the date of joining the service in the light of the

aforesaid judgment. Hence, the candidature of the petitioner needs

to be canceled and his termination from service was

recommended. The matter was placed before the Standing

Committee to consider the view of the Selection and Appointment

Committee, after consideration, approved the same and directed

the Standing Committee to place before the Full Court for

consideration but, in the meantime, the response was received and

the same was directed to be placed before the Full Court and the

Full Court, in its meeting dated 19.9.2020 vide Agenda No.7

considered the resolution dated 1.9.2020 of the Standing

Committee and finally accepted the minutes dated 12.8.2020 of the

Selection and Appointment Committee, thereby recommended the

cancellation of candidature of the petitioner, in consequence, his

termination from the Bihar Superior Judicial Service. His

representation was also considered and the same was rejected. In

pursuance thereof, vide letter no. 37424 dated 22.9.2020, he was

communicated the decision of the Full Court. Ultimately, the

petitioner has been terminated from service vide Memo No. 12094

dated 17.12.2020.

Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

Learned counsel for the petitioner submits that in terms

of the advertisement, he fulfills all the conditions and one of the

condition that he must have an experience of 7 years as an

advocate as on the cut-off date and it cannot be re-shifted on the

date of preliminary examination, main examination and interview

but, it has to be confined whether the petitioner was having

requisite qualification on the cut-off date and further submitted

that the law is well settled that a person having a qualification on

the cut-off date, the subsequent event cannot be a basis for making

him ineligible for the post as after filling up the form, he was

selected in the Uttar Pradesh Judicial Service (Junior Service) and

he continued to discharge the duty till he was appointed and he had

appeared in the preliminary text, mains examination and interview

after taking permission from the Hon'ble Allahabad High Court

and, finally, when selected, he resigned from the post. So, he will

be treated to be a candidate from Bar quota. The judgment

rendered in the case of Dheeraj Mor (supra) does not apply to his

case as the judgment was decided on different sets of facts and

context dealing with the person who was in service on the cut-off

date, whereas the petitioner was an advocate on the cut-off date.

So, the bar prescribed under Article 233(2) of the Constitution of

India will not come in operation against the petitioner. Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

The learned counsel for the High Court submits that the

two streams have been provided for recruitment, appointment and

promotion, one is from the Judicial Officers who are already in

service in judicial service, they can be promoted to either in 65%

quota or in the accelerated promotion in 10% quota and there is

another stream for direct recruitment from the Bar to the post of

District Judge (Entry Level). So, the person has to be an advocate

having an experience of 7 years 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 but, in the present case, the

petitioner was an advocate on the cut-off date, having experience

of 7 years but, later on, after recruitment in Junior Division of the

judicial service, Uttar Pradesh, he joined and, thereby, he ceased to

be considered for recruitment as District Judge (Entry Level)

under the Bihar Judicial Service. It has further been argued that the

word 'appointment' under Article 233 of the Constitution of India

would take its color and interpretation according to its placement

in the Constitution and intention derived from the Constitution.

Part-IV of the Constitution of India deals with the Union

Judiciary and Article 124 (3) prescribes the qualification for

appointment as a Judge of Hon'ble Apex Court and prescribes that

a person shall not be qualified for appointment as a Judge of the Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

Supreme Court unless he is a citizen of India and has been for at

least five years a Judge of a High Court or of two or more such

Courts in succession. Article 217 falls in Chapter V Part VI of the

Constitution of India prescribes the minimum 10 years of service

in judicial office. In identical manner, a person at least 10 years as

an advocate has been made eligible for appointment of a High

Court Judge. Article 233 deals with appointment of District Judge

stipulates, which is under consideration in the present case that

appointments of persons to be, and the posting and promotion of,

district judges in any State shall be made by the Governor of the

State in consultation with the High Court exercising jurisdiction in

relation to such State and Clause-2 prescribes that a person not

already in the service of the Union or of the State shall only be

eligible to be appointed a district judge if he has been for not less

than seven years an advocate or a pleader and is recommended by

the High Court for appointment. Article 124, 217 and 233

deliniates the person can be appointed as a Supreme Court Judge,

High Court Judge and District Judge either from the service or

from the Bar. The scheme of the Constitution is very much clear

that those who are in service, their channel of appointment falls in

different stream, as mentioned above, will be made from the

cadres of those already in service and another stream deals with Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

those advocate to be appointed as Judge either to the Supreme

Court or the High Court and District Judge prescribing different

minimum period of experience as an advocate at different level.

Both the streams are running parallel, had merged and unified after

being appointed at different levels i.e. Supreme Court level or

High Court level or district court level. The person standing on

particular stream cannot be allowed for hopping from one stream

to another stream, they will have to swim and succeed in their own

stream and they cannot take help of the other stream. Article

236(b) of the Constitution deals with interpretation wherein it has

been provided that the 'judicial service" means a service

consisting exclusively of persons intended to fill the post of district

judge and other civil judicial posts inferior to the post of district

judge.

Article 233 (2) of the Constitution specifically stipulates

that a person already in service of Union or State shall not be

eligible to be appointed as a district judge. So, it has been provided

mandatorily that in Bar quota, a person should not be in service

either in the Union or State, has been made ineligible for

consideration for appointment as a district judge but, has been

made eligible those advocates having 7 years of experience and is

to be recommended by the High Court for such appointment. So, it Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

is made clear that those who are in service of Union or State has

specifically been deprived for consideration for the post of district

judge. At the same time, a person having 7 years of experience as

an Advocate has been made eligible for consideration for

appointment as a district judge by way of lateral entry in service in

the District Judge cadre.

In view of the scheme of the Constitution, two sources

have been prescribed for recruitment and appointment, one is from

Bar and another from the service but, in the present case, the moot

question to be answered is as to whether the person who is to be

appointed from the stream of Bar quota is required to continue to

be an advocate at the cut-off date prescribed in the advertisement

or is required to continue to be an advocate at all the times till

recruited as district judge, direct recruit.

In reply, it has been submitted by the learned counsel for

the petitioner, the Constitutional scheme is to be construed in the

manner the requisite qualification is co-relative to cut-off date and

would not be interpreted in such manner that the person to be

remained all through an advocate till the date of his appointment

rather only prescription has been provided that a person who is an

advocate for 7 years on the cut-off date has been made eligible for

consideration for the post.

Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

This Court, before arriving to concrete conclusion, has

to examine the judgments cited by the parties.

This complex issue has to be decided in the proper and

fair interpretation of the Constitution as has been submitted by the

counsel in what manner Article 233(2) of the Constitution is to be

construed as it exposits that the minimum qualification from the

stream of Bar quota is 7 years of practice which is essential

qualification for consideration for direct recruit but, the next

question is vital in the sense that in Article 233 of the Constitution

the word has been used in present perfect continuous tense, its

effect and its amplitude in the background whether the person

should continue to be advocate on the day of filing of the

application and also at the time of appearance in the different

stages of examination including at the time of his appointment.

Interpretation Of Constitution

Time without number the Hon'ble Apex Court has

adumbrated that the Court never allow a Constitution to be

narrowly construed keeping in view the principle that a

Constitution is a living document and organic which has the innate

potentiality to take many a concept within its fold. The Courts,

being alive to their constitutional sensibility, do possess a

progressive outlook having a telescopic view of the growing Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

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.

Putting stress on the facet of interpreting any law,

including the Constitution, the Court observed that the text of the

provision under consideration would be the primary source for

discerning the meanings that inhere in the enactment. It has been

laid down that in the light of the serious issues, it would always be

prudent, as a matter of constitutional necessity, to widen the search

for the true meaning, purport and ambit of the provision under

consideration. No provision, and indeed no word or expression, of

the Constitution exists in isolation, they are necessarily related to,

transforming and, in turn, being transformed by other provisions, Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

words and phrases in the Constitution. It will be relevant for this

Court to quote paragraph nos. 50 to 54 of the judgment in the case

of Kalpana Mehta & Ors. Vs. Union of India & Ors. reported in

(2018) 7 SCC 1 : 2018 SCC OnLine SC 512, which reads as

follows:-

"50. Stressing on the facet of interpreting any law, including the Constitution, the Court observed that the text of the provision under consideration would be the primary source for discerning the meanings that inhere in the enactment. It has also been laid down that in the light of the serious issues, it would always be prudent, as a matter of constitutional necessity, to widen the search for the true meaning, purport and ambit of the provision under consideration. No provision, and indeed no word or expression, of the Constitution exists in isolation--they are necessarily related to, transforming and, in turn, being transformed by other provisions, words and phrases in the Constitution. Therefore, the Court went on to say:- (GVK Industries case, SCC p. 59, para 38)

"38. Our Constitution is both long and also an intricate matrix of meanings, purposes and structures. It is only by locating a particular constitutional provision under consideration within that constitutional matrix could one hope to be able to discern its true meaning, purport and ambit. As Prof. Laurence Tribe points out:

'[T]o understand the Constitution as a legal text, it is essential to recognize the ... sort of text it is: a constitutive text that purports, in the name of the people..., to bring into being a number of distinct but inter-related institutions and practices, at once legal and political, and Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

to define the rules governing those institutions and practices. (See "Reflections on Free-Form Method in Constitutional Interpretation", [(1995) 108 Harv L Rev 1221] p. 1235.

51. The Constitution being an organic document, its ongoing interpretation is permissible. The supremacy of the Constitution is essential to bring social changes in the national polity evolved with the passage of time. The interpretation of the Constitution is a difficult task. While doing so, the Constitutional Courts are not only required to take into consideration their own experience over time, the international treaties and covenants but also keep the doctrine of flexibility in mind. It has been so stated in Union of India v. Naveen Jindal and another [(2004) 2 SCC 510].

52. In S.R. Bommai, [(1994) 3 SCC 1] the Court ruled that correct interpretation in proper perspective would be in the defence of democracy and in order to maintain the democratic process on an even keel even in the face of possible friction, it is but the duty of the Court to interpret the 34 108 Harv L Rev 1221, 1235 (1995) 35 (2004) 2 SCC 510 Constitution to bring the political parties within the purview of the constitutional parameters for accountability and to abide by the Constitution and the laws for their strict adherence. With the passage of time, the interpretative process has become expansive. It has been built brick by brick to broaden the sphere of rights and to assert the constitutional supremacy to meet the legitimate expectations of the citizens. The words of the Constitution have been injected life to express connotative meaning.

Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

53. Recently, in K.S. Puttaswamy and another v. Union of India and others, [(2017) 10 SCC 1], one of us (Dr. D.Y.

Chandrachud, J.) has opined that constitutional developments have taken place as the words of the Constitution have been interpreted to deal with new exigencies requiring an expansive reading of liberties and freedoms to preserve human rights under the Rule of Law. It has been further observed that the interpretation of the Constitution cannot be frozen by its original understanding, for the Constitution has evolved and must continuously evolve to meet the aspirations and challenges of the present and the future. The duty of the Constitutional Courts to interpret the Constitution opened the path for succeeding generations to meet the challenges. Be it stated, the Court was dealing with privacy as a matter of fundamental right.

54. In Supreme Court Advocates-on-Record Association and others v. Union of India, [(1993) 4 SCC 441] , the Court exposited that the Constitution has not only to be read in the light of contemporary circumstances and values but also in such a way that the circumstances and values of the present generation are given expression in its provisions. The Court has observed that constitutional interpretation is as much a process of creation as one of discovery. Thus viewed, the process of interpretation ought to meet the values and aspirations of the present generation and it has two facets, namely, process of creation and discovery. It has to be remembered that while interpreting a constitutional provision, one has to be guided by the letter, spirit and purpose of the language employed therein and also the constitutional silences or abeyances that are discoverable. The scope and discovery has a connection with the theory of constitutional implication. Additionally, the interpretative process of a provision of a Constitution is also Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

required to accentuate the purpose and convey the message of the Constitution which is intrinsic to the Constitution."

In the case of R.C. Poudyal Vs. Union of India & Ors.

reported in 1994 Supp (1) SCC 324 wherein in paragraph no.124,

the Hon'ble Apex Court has observed that in the interpretation of

a constitutional document, 'words are but the framework of

concepts and concepts may change more than words

themselves'. The significance of the change of the concepts

themselves is vital and the constitutional issues are not solved by

a mere appeal to the meaning of the words without an acceptance

of the line of their growth. It is aptly said that "the intention of a

Constitution is rather to outline principles than to engrave details

and in paragraph no.125 quotes Australian Law Journal wherein it

has been exposited that a flexible approach is imperative when it is

sought to regulate the affairs of a nation by powers which are

distributed, not always in the most logical fashion, among two or

more classes of political agencies. The difficulties arising from this

premise are much exacerbated by the way in which the Australian

Constitution came to be formed. Paragraph no.125 being relevant

is quoted herein below:-

"125. Commenting on the approach appropriate to a Constitution, a learned author speaking of another federal document says (The Australian Law Journal, Vol. 43 at p.256) :

Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

"A moment's reflection will show that a flexible approach is almost imperative when it is sought to regulate the affairs of a nation by powers which are distributed, not always in the most logical fashion, among two or more classes of political agencies. The difficulties arising from this premise are much exacerbated by the way in which the Australian Constitution came to be formed : drafted by many hands, then subjected to the hazards of political debate, where the achievement of unanimity is often bought at the price of compromise, of bargaining and expediency."

In view of the aforesaid judgments, this Court has to see

in what manner the words have been framed and its color, its

fragrance and shades including where the word has been placed

and context, it cannot be understood in inflexibility but, has to be

understood and construed in the manner any clause or word has

been used for solving the complex problem that has been raised in

the present application.

Interpretation of applicability of Article 233 in the matter of

recruitment of District Judge, Entry Level, Direct from Bar

Article 233 is in two parts, clause (1) deals with in what

manner the appointment and promotion of the district judge has to

be made by the Governor in consultation with the High Court but,

it does not construe the source of appointment whereas clause (2)

deals with two source of appointment, one from the bar having

experience of 7 years and another source is from the service. It has

specifically been stipulated that a person in service in the Union or Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

State, will not be eligible for appointment in the district judge from

the stream of Advocate. So, itself negates the right of a person who

is in judicial service would be eligible for consideration for

appointment as District Judge (Direct Entry) from another stream

which is meant for advocate. It has also to be noted in significance

Clause (2) of Article 233 of the Constitution has used present

perfect tense in consideration to source of appointment in Bar

quota. So, its true color and meaning came for consideration in the

case of Rameshwar Dayal Vs. State of Punjab and Ors. reported in

(1961) 2 SCR 874 : AIR 1961 SC 816 as in that case, one of the

question was raised, in what manner Article 233(2) has to be

construed looking to arrangement and placement of words. One of

the question was raised that by reason of the use of present perfect

tense "has been" in clause (2) of Article 233, the rules of grammar

require that the person eligible for appointment must not only have

been an advocate or pleader before but must be an advocate or

pleader at the time he is appointed to the office of District Judge.

In paragraph no.13, it has been held in the following manner: " It

is perhaps necessary to add that we must not be understood to have

decided that the expression 'has been' must always mean what

learned Counsel for the appellant says it means according to the

strict rules of grammar. 'It may be seriously questioned if an Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

organic Constitution must be so narrowly interpreted, and the

learned Additional Solicitor-General has drawn our attention to

other Articles of the Constitution like Article 5(c) where in the

context the expression has a different meaning. Our attention has

also been drawn to the decision of the Allahabad High Court in

Mubarak Mazdoor v. K. K. Banerji {AIR 1958 All 323} where a

different meaning was given to a similar expression occurring in

the proviso to Sub-section (3) of Section 86 of the Representation

of the People Act, 1951. We consider it unnecessary to pursue this

matter further because the respondents continued to be an advocate

at Punjab High Court, when they were appointed as district judges

and they had a standing of more than seven years when they were

appointed. They were clearly eligible for appointment under clause

2 of Article 233 of the Constitution.

In the case of Chandra Mohan Vs. High Court of

Judicature at Allahabad reported in AIR 1966 SC 1987 where the

problem arose as the Selection Committee, constituted for

appointment of U.P. Higher Judicial Service, according to the said

Rule, selected 6 candidates who were suitable for appointment to

the service as it appears that certain persons were appointed in

Higher Judicial Service from the executive side who were

discharging judicial duty. Challenge was made that the person Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

from executive side cannot be treated to be in judicial service as

has been mentioned in Article 233 (2) of the Constitution wherein

service of Union or State has been mentioned to be taken into

consideration for appointment from the judicial officer. To solve

this issue, the Court has delineated and enunciated that the service

under Article 233 of the Constitution it has to be construed those

who are discharging the duty from a judicial service, it cannot be

extended to those officers who are discharging the judicial

functions in the executive side as judicial officer has to be

construed who are member of judicial service of State. The

Hon'ble Apex Court in Chandra Mohan's case (supra) has laid

down that before construing the said provisions, it should be

remembered that the fundamental rule of interpretation is the same

whether one construes the constitutional provisions or the normal

statutory provision enacted by the Parliament or State Legislature,

namely, that the court will have to find out the express intention

from the words of the Constitution or the Act, as the case may be

but, if, two constructions are possible then the Court must adopt

that which will ensure smooth and harmonious working of the

Constitution and eschew the other which will lead to absurdity or

give rise to practical inconvenience or make well established

provisions of existing law nugatory.

Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

The Court has also held that the appointments of persons

to be, and the posting and promotion of, district judges in any State

shall be made by the Governor of the State. There are two sources

of recruitment, namely, (i) service of the Union or of the State, and

(ii) members of the Bar. The judges from the first source are

appointed in consultation with the High Court and those from the

second source are appointed on the recommendation of the High

Court. But in the case of appointments of persons to the judicial

service other than as district judges, they will be made by the

Governor of the State in accordance with rules framed by him in

consultation with the High Court and the Public Service

Commission. But the High Court has control over all the district

courts and courts subordinate thereto, subject to certain prescribed

limitations. It has further been held that "the service of the Union

or the State" means any of the Union or of the State. Meaning of

judicial service in exclusive term has been provided for

appointment from that source and this judgment made it very clear,

two sources are there, one from the member of judicial service and

another from the member of the bar. It will be relevant to quote

following excerpts from the aforesaid judgment which reads as

follows:-

"------Before construing the said provisions, it should be remembered that the fundamental rule of interpretation is the Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

same whether one construes the provisions of the Constitution or an Act of Parliament, namely, that the court will have to find out the expressed intention from the words of the Constitution or the Act, as the case may be. But, "if, however, two constructions are possible then the Court must adopt that which will ensure smooth and harmonious working of. the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well established provisions of existing law nugatory." The Indian Constitution, though it does not accept the strict doctrine of separation of powers, provides for an independent judiciary in the States; it constitutes a High Court for each State, prescribes the institutional conditions of service of the Judges thereof, confers extensive jurisdiction on it to issue writs to keep all tribunals, including in appropriate cases the Governments, within bounds and gives to it the power of superintendence over all courts and tribunals in the territory over which it has jurisdiction. But the makers of the Constitution also realised that "it is the Subordinate Judiciary in India who are brought most closely into contact with the people, and it is no less important, perhaps indeed even more important, that their independence should be placed beyond question than in the case of the superior Judges." Presumably to secure the independence of the judiciary from the executive, the Constitution introduced a group of articles in Ch. VI of Part VI under the heading "Subordinate Courts". But at the time the Constitution was made, in most of the States the magistracy was under the direct control of the executive. Indeed it is common knowledge that in pre- independent India there was a strong agitation that the judiciary should be separated from the executive and that the agitation, was based upon the assumption that unless they were separated, the independence of the judiciary at the lower levels would be a mockery. So article 50 Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

of the Directive Principles of Policy states that the State shall take steps to separate the judiciary from the executive in the public services of the States. Simply stated, it means that there shall be a separate judicial service free from the executive control.

"-------So far there is no dispute. But the real conflict rests on the question whether the Governor can appoint as district judges persons from services other than the judicial service; that is to say, can he appoint a person who is in the police, excise, revenue or such other service as a district judge? The acceptance of this position would take us back to the pre- independence days and that too to the conditions prevailing in the Princely States. In the Princely States one used to come across appointments to the judicial service from police and other departments. This would also cut across the well-knit scheme of the Constitution and the principle underlying it, namely, the judiciary shall be an independent service. Doubtless, if Article 233(1) stood alone, it may be argued that the Governor may appoint any person as a district judge, whether legally qualified or not, if he belongs to any service under the State. But Article 233(1) is nothing more than a declaration of the general power of the Governor in the matter of appointment of district judges. It does not lay down the qualifications of the candidates to be appointed or denote the sources from which the recruitment has to be made. But the sources of recruitment are indicated in clause (2) thereof. Under clause (2) of Article 233 two sources are given, namely, (i) persons in the service of the Union or of the State, and (ii) advocate or pleader. Can it be said that in the context of Ch. VI of Part VI of the Constitution "the service of the Union or of the State" means any service of the Union or of the State or does it mean the judicial service of the Union or of the State? The Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

setting, viz., the chapter dealing with subordinate courts, in which the expression "the service" appears indicates that the service mentioned therein is the service pertaining to courts. That apart, Article 236(b) defines the expression "judicial service" to mean a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior Sup.C.1/66-7 to the post of district judge. If this definition, instead of appearing in Article 236, is placed as a clause before Article 233(2), there cannot be any dispute that "the service" in Article 233(2) can only mean the judicial service. The circumstance that the definition of "judicial service" finds a place in a subsequent Article does not necessarily lead to a contrary conclusion. The fact that in Article 233(2) the expression "the service" is used whereas in Articles 234 and 235 the expression "judicial service" is found is not decisive of the question whether the expression "the service" in Article 233(2) must be something other than the judicial service, for, the entire chapter is dealing with the judicial service. The definition is exhaustive of the service. Two expressions in the definition bring out the idea that the judicial service consists of hierarchy of judicial officers starting from the lowest and ending with district judges. The expressions "exclusively" and "intended" emphasise the fact that the judicial service consists only of persons intended to fill up the posts of district judges and other civil judicial posts and that is the exclusive service of judicial officers. Having defined "judicial service" in exclusive terms, having provided for appointments to that service and having entrusted the control of the said service to the care of the High Court, the makers of the world Constitution not have conferred a blanket power on the Governor to appoint any person from any service as a district judge."

Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

In the case of Satya Narayan Singh Vs. High Court of

Judicature at Allahabad reported in (1985) 1 SCC 225, the issue

was raised that the person in the State Judicial Service, can he

claim his right for consideration for being appointed to the direct

recruit in higher judicial service as before joining the sub-ordinate

judicial service, he acquired the qualification of 7 years of

experience. The Court has held that the person in the sub-ordinate

judicial service of the State cannot claim of being appointed in the

direct recruitment in District Judge level on the plea that before

joining the sub-ordinate judicial service, he acquired the

experience of 7 years as an advocate. The Hon'ble Apex Court has

held that as they are in judicial service, they fall under the different

stream for recruitment in District level (Direct Recruit) as that of

the direct recruitment meant for the lawyers who acquired 7 years

of experience and they cannot claim as because they do have an

experience of 7 years. In view of Article 233(2) of the

Constitution, it demarcates two source of recruitment in the

District Judge level, one from the person in the judicial service and

another from the person who is an advocate having 7 years of

qualification, as because they have acquired before joining the

State Judicial Service cannot claim recruitment under the different

source meant for the advocate.

Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

In the case of Deepak Agrawal Vs. Keshaw Kaushik &

Ors. reported in (2013) 5 SCC 277, the Hon'ble Apex Court was

considering the meaning of expression "the service" in Article

233(2) of the Constitution. The questions were (1) what is the

meaning of the expression "the service" in Article 233(2) of the

Constitution of India?, (2) what is meant by "advocate" or

"pleader" under Article 233(2)? and (3) whether a District

Attorney/Additional District Attorney/Public Prosecutor/Assistant

Public Prosecutor/Assistant Advocate General, who is full time

employee of the Government and governed and regulated by the

statutory rules of the State and is appointed through direct

recruitment by the Public Service Commission, is eligible for

appointment to the post of District Judge under Article 233(2) of

the Constitution? In this background, the Hon'ble Apex Court has

arrived to a conclusion that if Assistant District Attorney/Public

Prosecutor/Deputy Advocate General are conducting the cases for

and on behalf of the State Government in court and each of them

continue to be enrolled in the respective State Bar Council, they

will be treated to be an advocate in terms of Article 233(2) of the

Constitution and such person will not fall in the category under

service of the Union or the State. While considering the expression

"if he has been for not less than seven years an advocate", it has Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

been held that the terms is couched with "present perfect

continuous tense" which is used for a position which began at

some time in the past and is still continuing. In that context,

paragraph no.102, being relevant is quoted herein below:-

"102. 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."

The case of Vijay Kumar Mishra and Anr. Vs. High

Court of Judicature at Patna and Ors. reported in (2016) 9 SCC

313 in which the question came for consideration as to whether the

direction of the High Court that if the person of sub-ordinate

service intending to appear in the interview for direct recruitment

as District Judge Entry Level, he should first tender his resignation

and, only thereafter, he could be allowed to participate in

interview. In that case, an advertisement was issued inviting

applications from eligible Advocates for direct recruitment in Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

respect of 99 vacancies and the cut off date for the eligibility was

5th of February, 2015. The petitioners appeared and qualified in

the Preliminary as well as in the Mains Examination. In the

meantime, the petitioners qualified in the Subordinate Judicial

Service of the State of Bihar and they joined the service

accordingly. The result of the Mains Examination of the District

Judge Entry Level (Direct from Bar) was published on 22.1.2016

and the petitioners were declared qualified. The High Court

published the schedule of interview and issued Call Letters but one

of the conditions in the Interview Letter was 'No-Objection

Certificate of the Employer'. In pursuance thereof, the petitioners

filed their respective applications for granting permission to appear

in the interview wherein the High Court has communicated that he

may choose to resign before participating in the interview, once

tendered resignation, would not be permitted to be withdrawn.

That becomes the subject matter of consideration before the

Hon'ble Apex Court and the Hon'ble Apex Court considered the

selection and appointment and placing reliance on the judgment

passed in the case of Prafulla Kumar Swain vs. Prakash Chandra

Misra & Ors., (1993) Supp. (3) SCC 181 held that when the

framers of the Constitution have used the word "appointed" in

clause (2) of Article 233 for determining the eligibility of a person Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

with reference to his service then it is not possible to read the word

"selection" or "recruitment" in its place. In other words, the word

"appointed" cannot be read to include the word "selection",

"recruitment" or "recruitment process" and directed the High

Court to allow him to participate in the selection process without

insisting the petitioner to resign from current employment and if

the appellants are found suitable, it is open to the appellants to

resign their current employment and opt for the post of District

Judge, if they so choose. This case came for consideration in the

case of Dheeraj Mor Vs. The Hon'ble High Court of Delhi

reported in (2020) 7 SCC 401 : 2020 SCC OnLine SC 213 and the

Hon'ble Supreme Court overruled the Vijay Kr. Mishra case

(supra).

The petitioner has been removed from service in view of

the judgment passed in the case of Dheeraj Mor (supra). The issue

with regard to interpretation of Article 233 of the Constitution

under consideration was as to in what manner it has to be

construed with respect to two contentions, firstly, judicial officers,

who after accruing 7 years of practice as an advocate, joined the

judicial service and, on the date of filing application, he was

judicial officer. The second issue under consideration was with

respect to the members who are in judicial service as Civil Judge, Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

Junior Division or Senior Division, completed 7 years of judicial

service or 7 years as judicial officer cum Advocate, as to whether

they should be treated as eligible candidates. Both classes of

candidates were claiming to earn eligibility for participating in the

recruitment process. In the present case, with respect to petitioner

who had acquired the eligibility qualification of 7 years and

accordingly filled up the form but, the petitioner joined the service

in Junior Division, civil Judge, later on, the petitioner while

working, qualified in District Judge (Direct Recruit) also claiming

under Bar Quota. In that context, the following points were under

consideration which are as follows:-

"The petitioners who are in judicial service, have claimed that in case before joining judicial service a candidate has completed 7 years of practice as an advocate, he/she shall be eligible to stake claim as against the direct recruitment quota from the Bar notwithstanding that on the date of application/appointment, he or she is in judicial service of the Union or State. Yet another category is that of the persons having completed only 7 years of service as judicial service.

They contend that experience as a judge be treated at par with the Bar service, and they should be permitted to stake their claim. The third category is hybrid, consisting of candidates who have completed 7 years' by combining the experience serving as a judicial officer and as advocate. They claim to be eligible to stake their claim against the above quota."

Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

Article 233 of the Constitution came for consideration. The

Court has placed reliance on the earlier judgment Rameshwar Dayal v.

State of Punjab & Ors., AIR 1961 SC 816, Chandra Mohan (supra);

Satya Narain Singh (supra) and in the case of Deepak Agrawal (supra);

All India Judges' Association & Ors v Union of India & Ors (2010) 15

SCC 170 and on the judgment passed in the case of Vijay Kumar

Mishra (supra) which have been held to be not a good law to certain

extent. The Court while interpreting Article 233 held that there are two

source of recruitment and appointment in the District Judge cadre, one

is those judicial service, they would be promoted or they may get

accelerated promotion. Another stream for direct recruitment from the

Bar of those who has completed 7 years of experience as an advocate

and, finally, the answer has been given to the reference that the

candidate who acquired experience of 7 years on and before filling the

application will not stake claim if he has joined the subordinate service,

in corollary, require that he should not only remain an advocate at the

time of filling of the form but also at the time of his selection,

recruitment and appointment. The Court gave negative answer with

respect to question framed as mentioned herein above. It will be

relevant to quote the excerpts of the judgment which is as follows:-

Para-14 - "-----The requirement of 7 years of minimum experience has to be considered as the practising advocate as on the cut-off date, the phrase used is a continuous state of affair from the past. The context 'has been in practice' in which it has been used, it is apparent Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

that the provisions refers to a person who has been an advocate or pleader not only on the cut-off date but continues to be so at the time of appointment.-----"

Para-20 - "----Even if the word 'advocate' in clause (2) of Article 233 meant an advocate of a court in India, and the appointee must be such an advocate at the time of his appointment, no objection can be raised on this ground because being factually on the roll of Advocates of the Punjab High Court at the time of appointment, the candidate was admittedly an advocate in a court in India and continued as such till the date of his appointment.----"

Para-22 - "----It is only in respect of the persons covered by the second clause that there is a requirement that a person shall be eligible for appointment as District Judge if he has been an advocate or a pleader for not less than 7 years. In other words, in the case of candidates who are not members of a Judicial Service they must have been advocates or pleaders for not less than 7 years and they have to be recommended by the High Court before they may be appointed as District Judges, while in the case of candidates who are members of a Judicial Service the 7 years' rule has no application but there has to be consultation with the High Court. A clear distinction is made between the two sources of recruitment and the dichotomy is maintained. The two streams are separate until they come together by appointment. Obviously the same ship cannot sail both the streams simultaneously.----"

Para-23 - "----- It is clear from the decision of Deepak Aggarwal (supra) that recruitment from the Bar is only from among practicing advocates and those continuing Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

as advocates on the date of appointment. The submission that the issue of eligibility of in-service candidates did not come up for consideration is of no consequence as provisions of Article 233(2) came up for consideration directly before this Court."

Para-24 - "----- We find ourselves unable to agree with the proposition laid down in Vijay Kumar Mishra (supra). In our opinion, inservice candidates cannot apply as against the post reserved for the advocates/pleaders as he has to be in continuous practice in the past and at the time when he has applied and appointed. Thus, the decision in Vijay Kumar Mishra (supra) cannot be said to be laying down the law correctly."

Para-25 - "---- person in judicial service is eligible to be appointed as District Judge, but it is only by way of promotion or by way of merit promotion, which concept has been evolved in All India Judges Association and Ors. v. Union of India and Ors., (2002) 4 SCC 247, in which recommendations of the Shetty Commission were considered by this Court as to the method of recruitment to the post of the cadre of Higher Judicial Service - District Judges and Additional District Judges. This Court took note of the fact that at that moment, there were two sources for recruitment to the Higher Judicial Service, namely, (i) by promotion; and (ii) by direct recruitment. In order to strengthen the lower judiciary and to make them more efficient, the establishment of Judicial Academies was suggested. This Court approved the recommendations of Shetty Commission that the recruitment to the Higher Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

Judicial Service, i.e., the District Judge cadre from amongst the advocates should be 25 percent and the process of recruitment should be by a competitive examination including both written and viva voce tests. 75 percent should be by way of promotion and 25 percent by direct recruitment.----"

Para-28 - "They are not deprived of any opportunity in their pursuit once they have joined the judicial stream, they are bound to follow the provisions. It was open to them not to join the subordinate services. They could have staked a claim by continuing to be an advocate to the Higher Judicial Service as against the post of District Judge. However, once they chose to be in service, if they had seven years' experience at Bar before joining the judicial service, they are disentitled to lay a claim to the 25% quota exclusively earmarked for Advocates; having regard to the dichotomy of different streams and separate quota for recruitment. Opportunities are provided not only to in-service candidates but also to practicing candidates by the Constitutional Scheme to excel and to achieve what they aspire i.e. appointment as District Judge. However, when someone joins a particular stream, i.e. a judicial service by his own volition, he cannot sail in two boats. His chance to occupy the post of District Judge would be by a two-fold channel, either in the 50% seniority/merit quota, by promotion, or the quota for limited competitive examination."

Para-31 - "We are not impressed by the submission that when this Court has interpreted the meaning of service in Article 233(2) to mean judicial Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

service, judicial officers are eligible as against the posts reserved for the advocates/pleaders. Article 233(2) starts with the negative "not," which disentitles the claim of judicial officers against the post reserved for the practicing advocates/pleaders. They can be promoted to that post as per the rules;----"

Para-35 - "---- Though the appointment is made under Article 233(1), but the source and the channel for judicial officers is the promotion, and for the members of the Bar is by direct recruitment."

Para-45 - "In view of the aforesaid discussion, we are of the opinion that for direct recruitment as District Judge as against the quota fixed for the advocates/pleaders, incumbent has to be practicing advocate and must be in practice as on the cut-off date and at the time of appointment he must not be in judicial service or other services of the Union or State. For constituting experience of 7 years of practice as advocate, experience obtained in judicial service cannot be equated/combined and advocate/pleader should be in practice in the immediate past for 7 years and must be in practice while applying on the cut-off date fixed under the rules and should be in practice as an advocate on the date of appointment. The purpose is recruitment from bar of a practicing advocate having minimum 7 years' experience."

Para-46 - "In view of the aforesaid interpretation of Article 233, we find that rules debarring judicial officers from staking their claim as against the posts reserved for direct recruitment from bar are not ultra vires as rules are subservient to the provisions of the Constitution."

Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

Para-47. "We answer the reference as under:-

47.1. The members in the judicial service of the State can be appointed as District Judges by way of promotion or limited competitive examination.

47.2. The Governor of a State is the authority for the purpose of appointment, promotion, posting and transfer, the eligibility is governed by the Rules framed under Articles 234 and 235.

47.3. Under Article 232(2), an Advocate or a pleader with 7 years of practice can be appointed as District Judge by way of direct recruitment in case he is not already in the judicial service of the Union or a State.

47.4. For the purpose of Article 233(2), an Advocate has to be continuing in practice for not less than 7 years as on the cut-off date and at the time of appointment as District Judge. Members of judicial service having 7 years' experience of practice before they have joined the service or having combined experience of 7 years as lawyer and member of judiciary, are not eligible to apply for direct recruitment as a District Judge.

47.5. The rules framed by the High Court prohibiting judicial service officers from staking claim to the post of District Judge against the posts reserved for Advocates by way of direct recruitment, cannot be said to be ultra vires and are in conformity with Articles 14, 16 and 233 of the Constitution of India.

Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

47.6. The decision in Vijay Kumar Mishra (supra) providing eligibility, of judicial officer to compete as against the post of District Judge by way of direct recruitment, cannot be said to be laying down the law correctly. The same is hereby overruled."

Hon'ble Mr. Justice S. Ravindra Bhat has

concurred with the view of Mr. Justice Arun Mishra but, has

given his separate opinion in the judgment.

Para-79 - "The upshot of the above discussion is that the Constitution makers clearly wished to draw a distinction between the two sources of appointment to the post of District Judge. For one, i.e. Advocates, eligibility was spelt out in negative phraseology, i.e. not less than seven years' practice; for judicial officers, no eligibility condition was stipulated in Article 233 (2): this clearly meant that they were not eligible to be appointed (by direct recruitment) as they did not and could not be considered advocates with seven years' practise, once they entered the judicial service. The only channel for their appointment, was in accordance with rules framed by the High Court, for promotion (as District Judges) of officers in the judicial service (defined as those holding posts other than District Judges, per Article 236 [b])."

Para-80 - "In view of the above discussion clearly, the decision in Satya Naraian Singh (supra) correctly appreciated the relevant provisions and held that the dichotomy between the two streams meant that those in Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

one stream (read judicial service) could not compete for vacancies falling in the quota earmarked for advocates."

Para-84 - "This court is also of the opinion that if rules of any State permit judicial officers to compete in the quota for appointment as District Judges, they are susceptible to challenge."

"------Clear quotas for both sources have been earmarked by High Courts. If one those in one stream, or source- i.e. judicial officers- are permitted to compete in the quota earmarked for the other (i.e. advocates) without the converse situation (i.e. advocates competing in the quota earmarked for judicial officers- an impossibility) the result would be rank discrimination."

Para-87 - "The Constitution makers, in the opinion of this court, consciously wished that members of the Bar, should be considered for appointment at all three levels, i.e. as District Judges, High Courts and this court. This was because counsel practising in the law courts have a direct link with the people who need their services; their views about the functioning of the courts, is a constant dynamic. Similarly, their views, based on the experience gained at the Bar, injects the judicial branch with fresh perspectives; uniquely positioned as a professional, an advocate has a tripartite relationship: one with the public, the second with the court, and the third, with her or his client. A counsel, learned in the law, has an obligation, as an officer of the court, to advance the cause of his client, in a fair manner, and assist the court. Being members of the legal profession, advocates are also considered thought leaders. Therefore, the Constitution makers envisaged that Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

at every rung of the judicial system, a component of direct appointment from members of the Bar should be resorted to. For all these reasons, it is held that members of the judicial service of any State cannot claim to be appointed for vacancies in the cadre of District Judge, in the quota earmarked for appointment from amongst eligible Advocates, under Article 233."

Para-89 - "As a result of the above discussion, it is held that Vijay Kumar Mishra (supra), to the extent that it is contrary to Ashok Kumar Sharma (supra), as regards participation in the selection process, of candidates who are members of the judicial service, for appointment to the post of District Judge, from amongst the quota earmarked for advocates with seven years' practice, was wrongly decided. To that extent, Vijay Kumar Mishra (supra) is hereby overruled."

A similar issue came for consideration in the case of R.

Poornima and Ors. Vs. Union of India and Ors. reported in 2020

SCC OnLine SC 714. In that case, R. Poornima and others have

joined the service as a District Judge (Direct Recruit) and before

that they were advocates and they were claiming that their names

should be considered for appointment as a High Court Judge

taking into consideration their service rendered the service as an

advocate but, the Hon'ble Apex Court has rejected the claim of

Judicial Officers and refused to take into consideration the

experience gained as an advocate. It has been held that they are Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

from the source of judicial service and they cannot be treated to be

from the source of advocate. In that case, the judgment passed in

the case of Dheeraj Mor (supra) came for consideration with

approval and the Hon'ble Apex Court has made an observation

that it is not permissible anymore, for people to hop-on and hop-

off between the two independent streams of recruitment. Paragraph

no.17 being relevant is quoted herein below:-

"17. Therefore, for the purpose of Article 233, it is not permissible anymore, for people to hop-on and hop-off between the two independent streams of recruitment, in the light of the law laid down in Dheeraj Mor. Hence the reliance placed by the Petitioners in their pleadings, on the reference pending at that time in Dheeraj Mor, has become irrelevant."

Consideration on the merit of the case

So, it is very much clear 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 and it is

made clear that he 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. In the present case, admittedly the petitioner Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

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. So, it is very

much clear that he was in-service candidate though at the time of

cut-off date, he was an advocate but, at the time of appointment, he

was not an advocate. So, his claim that he has rightly been

appointed as a District Judge Direct Entry Level is not sustainable

and the submission of the petitioner is rejected accordingly.

Consideration on applicability of Dheeraj Mor case Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

The petitioner has raised the issue that the judgment of

Dheeraj Mor (supra) case will not affect the case of the petitioner

as the judgment was pronounced by the Hon'ble Apex Court after

his appointment as an Additional District Judge and posted at

Begusarai but, the law is very much settled that evey judgment has

a retrospectivity unless the prospectivity is given to that judgment

but, that power too lies on the Hon'ble Apex Court and an

authority of giving judgment in prospective operation does not lie

with the High Court but only to the Hon'ble Apex Court. Reliance

can be placed to the judgment reported in the case of P.V. George

and Ors. Vs. State of Kerala and Ors. reported in (2007) 3 SCC

557. Paragraph no.14 and 29, being relevant, are quoted herein

below:-

"14. For the views we propose to take, it is not necessary for us to consider all the decisions relied upon by Mr. Rajan. The legal position as regards the applicability of doctrine of prospective overruling is no longer res integra.

This Court in exercise of its jurisdiction under Article 32 or Article 142 of the Constitution of India may declare a law to have a prospective effect. The Division Bench of the High Court may be correct in opining that having regard to the decision of this Court in L.C. Golak Nath and Others v. State of Punjab and Another (AIR 1967 SC 1643) the power of overruling is vested only in this Court and that too in constitutional matters, but the High Courts in exercise of their jurisdiction under Article 226 of the Constitution of India, Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

even without applying the doctrine of prospective overruling, indisputably may grant a limited relief in exercise of their equity jurisdiction.

29. ------ The law declared by a court will have a retrospective effect if not otherwise stated to be so specifically.---"

In that view of the matter, the judgment passed in the

case of Dheeraj Mor (supra) applies to the present case as the

judgment has not given the prospective over-ruling, it cannot be

said that this judgment will not be applicable to the case of the

present petitioner.

One plea was taken by the learned counsel for the

petitioner that he has not approached to this Court or the Hon'ble

Apex Court as well as his recommendation was not made subject

to the outcome of the decision rendered by the Hon'ble Apex

Court in S.L.P. (C) No. 14156 of 2015 and other connected cases

as it was only confined to Roll Nos. 13869 and 12239 at merit

position no. 61 & 67 respectively.

Learned counsel for the High Court has given reply that

it was not known to the High Court that the petitioner was serving

in the subordinate service of Uttar Pradesh Judicial Service but, in

the judgment passed in the case of Dheeraj Mor (supra), the

Hon'ble Apex Court has made it specifically the entitlement for

being appointed as a District Judge in direct quota and postulates Patna High Court CWJC No.8306 of 2020 dt. 08-04-2021

that he must be an advocate not only on the cut-off date but also at

the time of appointment.

Final Result

This Court agrees with the submission of the learned

counsel for the High Court and, accordingly, this Court does not

find any merit in the submission. 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.

Accordingly, we do not find any merit in this writ

application and the same is dismissed.

(Shivaji Pandey, J)

Partha Sarthy, J :- I Agree.

( Partha Sarthy, J)

rishi/-

AFR/NAFR                NAFR
CAV DATE                04.02.2021
Uploading Date          09.04.2021
Transmission Date