Ker HC | Sessions Judge’s appointment set aside as appointee was not an advocate and was instead in judicial service, as on the date of appointment

Kerala High Court: While deciding the instant petition challenging the appointment of a District and Sessions Judge, the Bench of P.V. Asha, J., placing reliance upon Dheeraj Mor v. High Court of Delhi, 2020 SCC OnLine SC 213; set aside the appointment as the appointee was not anadvocate’ as on the date of his appointment as per the requisite and was instead in Judicial Service as on the last date fixed for completing step 2 of the process of the recruitment.

As per the facts, the High Court of Kerala issued Notification dated 21-11-2017 inviting applications for appointment as District and Sessions Judges in the Kerala Higher Judicial Service by direct recruitment from the Bar. After the written examination and interview, the High Court published list of candidates who qualified in the examination. On 08-06-2019 the High Court issued notice that the candidates who were Judicial Officers on the date of publication of recruitment notification would not be considered for appointment as District and Sessions Judges.

However, the respondent was appointed as a Sessions Judge against the NCA vacancy of Ezhavas/ Thiyyas/ Billavas. Petitioner’s counsel S. Sreekumar argued that in the aforementioned Dheeraj Mor case the Supreme Court made it clear that the quota set apart for direct recruitment cannot be filled up by those in service and that a candidate submitting application shall continue to be a practising advocate as on the date of his appointment, therefore the petitioner should be appointed in the place of the respondent/ appointee. The respondent’s counsel S.P.Aravindakshan Pillai, contended that the eligibility of a candidate is determined as on the date of final submission of his application. It was stated that since he had already completed the process of submitting application. As per the respondent crucial date for determining eligibility was 27-12-2017 which was the last date for submitting application and that he was a practising Advocate till he joined as Munsiff-Magistrate,  and started discharging his duties on 12-02-2018. The respondent contended that the date and the requirement was that candidates should possess the qualifications with respect to age and 7 years of practice as advocate as on 01-01-2017.

Perusing the contentions, the Court observed that petitioner had all the qualifications as was required and mentioned by Kerala State Higher Judicial Service Rules i.e. age between 35-45; a practising Advocate having a standing of not less than 7 (seven) years of practice as on the first day of January 2017. The petitioner was inducted in Kerala Judicial Service as Munsiff-Magistrate only with effect from 12-02-2018 and hence continuing as an Advocate till the charge of the post was taken on 12-02-2018.

Therefore, even on extension of the date of closure of step II process from 11-01-2018 to 22-01-2018, the petitioner continued to be an Advocate. The Court further observed that the concerned paragraph in the Notification and Rules containing the clause “save as otherwise provided” cannot apply to eligibility regarding qualification. It can only be with respect to requirements for which no date or condition is provided. Therefore, it cannot be said that eligibility with respect to qualification is to be determined as on the date of closure of step II process. The Court also noted that in Dheeraj Mor case, the Supreme Court clarified the position stating 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.” After examining the concerned Rules and the Supreme Court decision, the Court deemed it fit to allow the petition and held that as the petitioner is entitled to be appointed in place of the respondent. [K. Deepa v. State of Kerala, 2020 SCC OnLine Ker 2769 , decided on 14-07-2020]    

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