Delhi High Court: In a case wherein, the appointment of Respondent 5 in Delhi Higher Judicial Services was challenged, the Division Bench of Vibhu Bakhru* and Amit Mahajan, JJ. dismissed the petition and observed that the Resolution No. 160/2009 passed by Bar Council of India clarified that, an advocate would continue to be considered in practice during the period he pursues a full-time LL.M. course as a regular student. Further, by virtue of the said Resolution, Respondent 5 was not required to suspend his enrolment as an advocate on account of pursuing the said full-time course.
The petitioner had filed the present petition challenging the Notification appointing thirty-two persons as members of the Delhi Higher Judicial Services (“DHJS”) against permanent posts. The petitioner had also appeared for the DHJS Examination-2022 (“DHJSE-22”) along with other candidates and was placed at serial no. 36 in the order of merit. The petitioner had not been appointed in the DHJS as the number of vacancies under the general category were limited to thirty-two. The petitioner sought directions for his appointment in the DHJS and further, challenged the eligibility of Respondent 5 on the ground that he had pursued a full-time Master of Law Program at the University College London (UCL) from 2015 to 2016. Thus, the continuous period of practice for Respondent 5 was required to be calculated from June 2016.
Analysis, Law, and Decision
The issue for consideration before this Court was “whether Respondent 5 failed to satisfy the eligibility criterion as set out in Rule 9(2) of the DHJS Rules, 1970 which required the candidate to “have been continuously practicing as an Advocate for not less than seven years as on the last date of receipt of the application”?”.
Eligibility conditions under Article 233(2) and Rule 9(2) not different – ‘Advocate’ and ‘Practiced as an Advocate’ are same
The Court observed that as per Article 233(2) of the Constitution, a person was eligible to be appointed as a District Judge, “if he had been an advocate or a pleader for a period not less than seven years” and as per Rule 9(2) and (3) (after amendment in 2022), a person to be eligible for direct recruitment, “must have been continuously practicing as an Advocate for not less than seven years as on the last date of receipt of applications”. Thus, the Court opined that “there was no material difference between the eligibility criteria as set out for an advocate under Article 233(2) of the Constitution and Rule 9(2) of the DHJS Rules. In terms of Article 233(2) of the Constitution, any person who had been an advocate for not less than seven years, was eligible to be appointed as a District Judge. It was implicit that the term ‘advocate’ would mean a person who was in practice as an advocate”. The Court further opined that it was not persuaded to accept that there was a difference between a person who was an advocate, and a person who had practiced as an advocate.
The Court noted that as per Section 2(1)(a) of the Advocates Act, 1961, an ‘advocate’ means ‘an advocate entered in any roll under the provisions of the Act’. The Court observed that as per this definition, an ‘advocate’ was one whose name was entered in any roll maintained for the said purpose and it was necessary for a person to be enrolled to practice the profession of law. The Court thus, opined that it would be erroneous to assume that a person who was not practicing the profession of law could continue as an advocate on the rolls of the State Bar Council. The Court further noted that Bar Council of India Certificate and Place of Practice (Verification) Rules, 2015 had been enacted to verify that an advocate, who had been issued a certificate of practice, continues to be engaged in the profession of law. Therefore, every advocate was required to apply for verification of certificate of practice issued by the State Bar Council periodically and the said application was required to be dismissed, if it was found that the advocate had left the practice and had no bona fide intent or interest in continuing it in future.
Thus, the Court opined that the enrolment of a person as an advocate and grant of certificate was synonymous to him being in practice of law and an advocate, who was not practicing the profession of law, was a misnomer. The Court therefore held that there was no material difference in the eligibility criteria for an advocate to be appointed as a District Judge as stipulated under Article 233(2) of the Constitution and Rule 9(2) of the DHJS Rules.
Rule 9(2) of the DHJS Rules amended to conform to the Supreme Court’s interpretation of Article 233(2) of the Constitution
Rule 9(2) of the DHJS Rules was amended in 2022 solely to bring it in conformity with the law as settled by the Supreme Court in Dheeraj Mor v. High Court of Delhi, (2020) 7 SCC 401, wherein the Supreme Court concurred with the decision in Deepak Aggarwal v. Keshav Kaushik, (2013) 5 SCC 277 that, a period of seven years as an advocate, as mentioned in Article 233(2) of the Constitution, was required to be a continuous period of seven years on the last date of application.
This Court, therefore, rejected the contention that Rule 9(2) of the DHJS Rules contemplated the condition of active practice as an advocate, in addition to the eligibility criteria stipulated under Article 233(2) of the Constitution. Thus, the Court opined that Rule 9(2) of the DHJS Rules must be read embodying the eligibility criteria for appointment of an advocate as set out in Article 233(2) of the Constitution.
Pursuit of Master’s Course in Law not a break in practice
The Court referred to the Resolution No. 160/2009 of the Bar Council of India which stated, “RESOLVED that the practicing advocates could join in LL.M. course as a regular student without suspending the practice”. Thus, the Court observed that the said Resolution clarified that an advocate would continue to be considered in practice during the period he pursues a full-time LL.M. course as a regular student.
The Court relied on Tirumala Devi Eada v. State of Andhra Pradesh, 2012 SCC OnLine AP 480, wherein it was held that it was sufficient “if it was made out that the candidate had been on the rolls of the State Bar Council as an advocate for a minimum period of seven years”. Thus, this Court observed that “a person, who was enrolled as an advocate on the rolls of the State Bar Council for a period of seven years preceding the date of his application, would satisfy the eligibility criteria as set out in Article 233(2) of the Constitution”.
‘Standing at the Bar’; ‘Practice as an Advocate’; and ‘Actual Practice’ used synonymously
The Court rejected the contention of Counsel for the petitioner that the requirement of seven years standing at the Bar was materially different from the eligibility criteria as set out in Rule 9(2) of the DHJS Rules or Article 233(2) of the Constitution. For this, the Court relied on Sudhakar Govindrao Deshpande v. State of Maharashtra, 1985 SCC OnLine Bom 92, in which the Bombay High Court referred to an earlier decision of the Supreme Court in Chandra Mohan v. State of Uttar Pradesh, AIR 1966 SC 1987, and thus, observed that for the phrase ‘has been an advocate or a pleader’, the Supreme Court had referred to the second group of persons eligible for appointment under Article 233(2) of the Constitution as ‘members of the Bar’ and Article 233(2) of the Constitution therefore, when it referred to a person who had been for not less than seven years an advocate or pleader, it actually referred to a member of the Bar who was of not less than seven years’ standing”.
Enquiry as to the functions performed by an Advocate not necessary
The Court opined that the eligibility criterion of being in practice for seven years did not require any inquiry into the actual area of practice of an advocate and if a person was enrolled as an advocate for a period of seven years prior to the date of the application, he would satisfy the eligibility criteria unless it was established that he was not entitled for being so enrolled as an advocate and had suspended his practice either voluntarily or otherwise; or had accepted an engagement or vocation, which was impermissible as an advocate.
The Court observed that in the present case, Respondent 5’s practice, as an advocate, was not suspended during the period when he was pursuing his Master of Law Program and by virtue of Resolution No. 160/2009 passed by the Bar Council of India, he was not required to suspend his enrolment as an advocate on account of pursuing the said full-time course.
The Court held that there was no merit in the petitioner’s challenge to the appointment of Respondent 5 in the DHJS and thus, the petitioner’s prayer that the DHC be directed to appoint him in the DHJS must also fail. Thus, the court dismissed the petition.
[Karan Antil v. High Court of Delhi, 2023 SCC OnLine Del 1988, decided on 10-4-2023]
Advocates who appeared in this case :
For the Petitioner: Akhil Sibal, Senior Advocate and Praveen Kumar, Advocate;
For the Respondents: Dayan Krishnan, Sacchin Puri, Akshay Makhija, Senior Advocates and Dr. Amit George, Piyo Harold Jainmon, Amil Acharya, Raya Durgam Bharat, Arkaneil Bhaumik, Praveen Kumar Sharma, Nidhi Rana, Praveen Kumar, Mitesh Tiwari, Mukesh Kumar Sharma, Manish Bhardwaj, Devansh A Mahta, Mrigank Prabhakar, Sakshi Banga, Rinku Parewa, Nikhil Jayant, Nitesh Kumar, Sahil Khurana, Advocates.
*Judgment authored by: Justice Vibhu Bakhru