Telangana High Court

Nidhi Raj vs The State Of Telangana on 9 March, 2023

Bench: P Naveen Rao, Nagesh Bheemapaka

     THE HON'BLE SRI JUSTICE P.NAVEEN RAO
                       &
THE HONOURABLE SRI JUSTICE NAGESH BHEEMAPAKA
           WRIT PETITION NO.40132 OF 2022
                    Date: 09.03.2023

Between:

NIDHI RAJ, D/o. P.S.Rajan,
Aged-32 years, Occ-Advocate,
R/o. Flat No.G1, BRC REsidency,
Plot No.43, Sri Chakra enclave,
6th Avenue, Sainikpuri,
Secunderabad, 500094.



                                               .....Petitioner


                           And


1.   The State of Telangana,
     Rep. by its Principal Secretary,
     Law (LAW & JSC.F) Department,
     Secretariat, Hyderabad.

2.   The High Court for the State of Telangana,
     Hyderabad rep. by its Registrar (Recruitment),
     Hyderabad.


                                            .....Respondents


The Court made the following:
                                -2-


     THE HON'BLE SRI JUSTICE P.NAVEEN RAO
                       &
THE HONOURABLE SRI JUSTICE NAGESH BHEEMAPAKA
              WRIT PETITION NO.40132 OF 2022

ORDER:

Heard Sri Munuga Sateesh, learned counsel appearing

for petitioner, learned Government Pleader for Law appearing

for repondent No.1 and Sri J. Anil Kumar, learned Standing

Counsel for High Court for the State of Telangana-

respondent No.2.

2. On 20.10.2022, recruitment notification vide

R.O.C.No.282/2021-RC was issued calling for applications

for recruitment to the post of Junior Civil Judge in the

District Judiciary in the State of Telangana. The petitioner

has applied to the said post and participated in the

preliminary examination. Though the petitioner was

successful in the preliminary examination, she was not

called for the main examination. The reason for not

considering the petitioner as eligible was on the ground that

by the time the recruitment notification was issued, she does

not put in three years of practice of advocate and therefore

not eligible to compete with to the post of Junior Civil Judge.

Aggrieved thereby, the petitioner instituted this writ petition.

This court vide order dated 01.11.2022, directed to subject

the petitioner to written examination but not to announce

the result until further orders.

3. The petitioner was enrolled as an advocate on

13.08.2015 in the combined state of Andhra Pradesh. On

08.03.2019, recruitment notification was issued for

appointment to the post of Junior Civil Judge. The petitioner

was selected against a vacancy reserved for Scheduled Caste

and appointed as a Civil Judge by order dated 06.01.2020.

She joined service on 18.01.2020. The Caste Certificate

issued to the petitioner by the Collector and District

Magistrate, Medchal-Malkajgiri which was published in the

Gazette notifitication on 24.02.2021, was cancelled. In view

of the cancellation of the Caste Certificate, the petitioner was

discharged from service on 31.03.2021 on the ground that

petitioner does not belong to scheduled caste category

against which vacancy she was appointed.

4. According to learned counsel for the petitioner, the

petitioner was enrolled in the year 2015 and has therefore

rendered more than 7 years of continuous practice as an

advocate and thus eligible to compete to the post of Junior

Civil Judge. According to learned counsel, it is not necessary

that the petitioner should have a continuous practice of three

years and as petitioner has completed more than three years

of practice, which is sufficient. He would further submit that

at any rate petitioner was working as Junior Civil Judge in

the interim period and later petitioner has resumed practice

and therefore the entire period has to be computed towards

experience as practicing advocate.

5. Per contra, according to learned Standing counsel for

TSHC, as per the notification and the relevant rule, the

petitioner must have three years of continous practice as on

the date of notification to be eligible to participate in the

selection process. As the petitioner does not have 3 years of

practice as an Advocate on resumption of practice after she

was discharged from the post of Junior Civil Judge, she is

not eligible to compete.

6. The post of Junior Civil Judge is governed by the

Telangana Judicial Services Rules, 2017 notified on

31.07.2017. Rule 5 prescribes eligibility criteria for direct

recruitment and recruitment by transfer. According to

clause II(a), "Person must have been practicing as an Advocate or

Pleader in any Court for a period of not less than three years on the

date of Notification for recruitment to the post". Thus, from the

reading of this provision, plain and simple, what is required

is person must have been in continuous practice as an

advocate for three years by the date of recruitment

notification. Requirement of this recruitment Rule, is

reiterated in the recruitment notification. Petitioner resumed

practice on 01.04.2021 and from that date she has not been

in continuous practice for 3 years by the date of recruitment

notification issued on 20.10.2022.

7. The issue of serving employees including Judicial

Officers for consideration for direct recruitment to the post

of District Judge was considered by the Hon'ble Supreme

Court in Deepak Aggarwal Vs. Keshav Kaushik.1 The

questions considered by the Hon'ble Supreme Court in the

above case 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)?

2 (2013) 5 SCC 277

(3) whether a District Attorney/Additional District Attorney/Public Prosecutor/Assistant Advocate General, who is a full-time employee of the Government and governed and regulated by the statutory rules of the State and is appointed by direct recruitment through the Public Service Commission, is eligible for appointment to the post of District Judge under Article 233(2) of the Constitution of India?

10. On through analysis of the provisions of the Article 233 of the Constitution of India, the service Rules governing the judicial services in the State of Haryana, the Act, 1967, and the Rules, 1979, the Hon'ble Supreme Court held as under:

"98. Admittedly, by the above resolution sof the Bar Council of India, the second and third paragraphs of Rule 49 have been deleted but we have to see the effect of such deletion. What Rule 49 of the BCI Rules provides is that an advocate shall not be a full-time salaried employee of any person, Government, firm, corporation or concern so long as he continues to practise. The "employment" spoken of in Rule 49 does not cover the employment of an advocate who has been solely or, in any case, predominantly employed to act and/or plead on behalf of his client in courts of law. If a person has been engaged to act and/or plead in court of law as an advocate although by way of employment on terms of salary and other service conditions, such employment is not what is covered by Rule 49 as he continues to practise law but, on the other hand, if he is employed not mainly to act and/or plead in a court of law, but to do other kinds of legal work, the prohibition in Rule 49 immediately comes into play and then he becomes a mere employee and ceases to be an advocate. The bar contained in Rule 49 applies to an employment for work other than conduct of cases in courts as an advocate. In this view of the matter, the deletion of the second and third paragraphs by the Resolution dated 22-6-2001 has not materially altered the position insofar as advocates who have been employed by the State Government or the Central Government to conduct civil and criminal cases on their behalf in the courts are concerned.

99. What we have said above gets fortified by Rule 43 of the BCI Rules. Rule 43 provides that an advocate, who has taken a full-time service or part-time service inconsistent with his practising as an advocate, shall send a declaration to that effect to the respective State Bar Council within the time specified therein and any default in that regard may entail suspension of the right to practice. In other words, if full-time service or part-time service taken by an advocate is consistent with his practising as an advocate, no such declaration is necessary. The factum of employment is not material but the key aspect is whether such employment is consistent with his practising as an advocate or, in other words, whether pursuant to such employment, he continues to act and/or plead in the courts. If the answer is yes, then despite employment he continues to be an

advocate. On the other hand, if the answer is in the negative, he ceases to be an advocate.

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 sometime 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."

11. In Dheeraj Mor (supra) the issue considered by the Hon'ble Supreme Court was on the eligibility of members of the Subordinate Judicial Services for appointment as District Judge as against the quota reserved by way of direct recruitment. The Hon'ble Supreme Court again analysed the provisions of the Article 233 of the Constitution of India, the Act, 1967, the Rules formulated by the Bar Council, and also the precedent decisions. The relevant paragraphs of the judgment rendered by the Hon'ble Justice Sri Arun Mishra speaking for himself and Hon'ble Justice Sri Vineet Saran read as under:

14. Article 233(2) provides that if an advocate or a pleader has to be appointed, he must have completed 7 years of practice. It is coupled with the condition in the opening part that the person should not be in service of the Union or State, which is the judicial service of the State. The person in judicial service is not eligible for being appointed as against the quota reserved for advocates. Once he has joined the stream of service, he ceases to be an advocate. 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 that the provisions refer 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.

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 practising 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 practising advocate having minimum 7 years' experience.

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."

(Emphasis supplied)

8. Having regard to the law laid down by the Hon'ble

Supreme Court and the relevant provision in 2017 Rules, for

a practicing advocate, three years continuous practice as an

Advocate by the date of recruitment notification is mandatory

to acquire eligibility to compete. Whereas, petitioner does

not have three years of continuous practice before the date of

notification. The service rendered as Junior Civil Judge can

not be computed towards experience as an Advocate.

Therefore she is not eligible to compete to the post of Junior

Civil Judge.

9. Therefore, we do not see any error in the decision of