The Allahabad High Court has said that seven years of continuous practice is necessary to become a Higher Judicial Service Officer / District Judge.
The Division Bench of Justice Kaushal Jayendra Thaker and Justice Ajai Tyagi passed this order while hearing a petition filed by Bindu.
The petitioner has prayed for the following reliefs:
“I. issue a writ, order or direction in the nature of certiorari quashing the impugned rejection order dated 22/10/2021.
II. issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to allow the petitioner to participate in the selection process of U.P Higher Judiciary Services, 2020.
III. to issue any other writ, order or direction which the court may deem fit and proper in the facts and circumstances of the case.”
The facts of the case are that the petitioner applied for being appointed as a Judicial Officer in the U.P State Higher Judicial Services, the clinching aspect which is under challenge is that the High Court after the petitioner had cleared the preliminary exam, she was not permitted to appear for final exams, on the ground that on interpretation of the rules and placing reliance on the judgment of the Apex Court in Deepak Agrawal v Keshav Kaushik and others, (2013) 5 SCC 277 the committee found that the petitioner does not have continuous practice for seven years on date of exam/filling form.
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The High Court on its administrative side conveyed to the petitioner that she was not qualified as per rules.
Jitendra Kumar, holding brief of the counsel appearing on behalf of petitioner has contended that the petitioner has passed preliminary exams and is practicing as a public prosecutor since 2019. Counsel for petitioner also places reliance on the judgment of the Apex Court in Deepak Aggrawal (supra).
The Court held that the petitioner cannot seek appointment as Judicial Officer/District Judge in this calendar year as the petitioner does not fulfill the criteria fixed as per provisions of Articles 233, 234 and 236 of the Constitution of India and the rules for. The question is whether the break in practice of the petitioner can be condoned? The decision in Deepak Aggarwal (supra) will not help the petitioner as in our case the Rules categorically mention and has been interpreted to mean seven years in Satish Kumar Sharma v Bar Council of HP, (2001) 2 SCC 365 will have to be looked into. In our case, the petitioner herein from a period of 2017 to 2019 was employed and so there is a break in a legal practice. The Rules framed have to be construed so as to see that the purpose of the legislation is not withered down.
The Court further held that,
The term used “has been” is interpreted to mean seven years and has to be in present perfect continuous tense and not has been seven years during any period. This interpretation will not permit us to entertain this petition and grant the mandamus to permit the petitioner to appear in the exam.
In case on hand, the petitioner ceased to be an Advocate under the Advocates Act, 1961 in August 2017 when she got selected as Examiner of Trade Mark & G.I.
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It was submitted by counsel at that time she surrendered her practicing licence. Thereafter in the year 2019, she was selected as Public Prosecutor in CBI where she is still working. The petitioner is a Public Prosecutor at present but as Public Prosecutor, she has not put in continuous service of 7 years.
“Hence, Deepak Aggarwal (supra) cannot be made applicable to the case. Paragraph 102 of the said decision which has been quoted above will not permit us to grant writ of mandamus for permitting the petitioner in the exam, as she is not qualified practicing period just when she applied in pursuance to the advertisement issued by the present respondents”
-the Court observed while dismissing the petition.