Punjab and Haryana High Court: In a bunch of writ petitions challenging order dated 5-06-2023 raising a common question of law that whether demand to prove Experience and six Court orders/interim orders by Assistant District Attorney (‘ADA’) and Deputy District Attorney (‘DDA’) candidates could have been raised after selection process got over, and whether such demand was justified, legal and in accordance with Rules, the Bench of Sanjeev Prakash Sharma, J. found such demand as ‘deplorable’ and quashed the said letter.
Background
The aspiring candidates had applied under advertisement by Punjab Public Service Commission (‘PPSC’) dated 5-04-2023 for the post of ADA and DDA, held eligible to participate in the selection process and finally placed in the mert list, having their names forwarded and recommended to the State Government for appointment to the said posts. However, the State issued an order on 5-06-2023 directing the selected candidates to produce copies of six Court orders/zimni orders of each year to show their presence in the Court for proving experience claimed.
Court’s Analysis of PPSC’s Selection Process
The Court started with perusing the provisions of the Rule governing the selection process, i.e., Punjab Prosecution and Litigation Rules of 2002 (‘Prosecution Rules 2002’) for DDA selection and Punjab Prosecution and Litigation (Group B) Service Rules of 2010 (‘Prosecution Rules 2010’) for ADA selection process.
ADA and DDA Selection Process
The Court went through the PPSC issuing advertisement for 119 ADA posts and 41 DDA posts requiring candidates to submit certain certificates. The Court highlighted that the advertisement issued by PPSC stating the essential qualifications being the same as those in Prosecution Rules 2002. The petitioners herein had cleared the written examination held on 18-12-2022 and also submitted all the eligibility documents for scrutiny, attended interview and got their names in the final merit list published on 2-03-2023. The said list was sent by PPSC to the State Department of Home Affairs and Justice and letter was issued to the selected candidates to provide for Experience Certificates and every year’s six Court orders/interim orders to prove their attendance in the Court along with an email dated 5-06-2023.
Court’s Analysis
The Court cited Tej Prakash Pathak v. Rajasthan High Court, (2013) 4 SCC 540 wherein, the Supreme Court’s larger bench is yet to pronounce its decision regarding change of Rules of the game and refrained from adverting to the said aspect in the instant matter but proceeded with legality of letter dated 5-06-2023 for examination on merits.
The Court explained that “Once a Law Graduate is enrolled as an Advocate, the condition under the Advocate’s Act applies to him. He is not allowed to do any other business, nor can he join any service or be holder of office of profit or gain. He is, therefore, presumed to be only practicing law.” The Court went on to refer Rule 47 of Bar Council of India Rules 1975 regarding restriction on other employments. The Court also cited Findlaw Legal dictionary to define ‘Bar’ which means being in the Legal Profession.
The Court relied on Bar Council of India v. A.K. Balaji, (2018) 5 SCC 379 for Supreme Court’s restriction against allowing practice by Foreign Law, Firms, Companies or Foreign Lawyers in India while recognizing Advocates’ practice as a practice of litigious matters as well as non-litigious matters. The Court cited further cases to clarify on eligibility for appointment vis à vis actual practice at the Bar to conclude that “an advocate who is enrolled with the Bar Council starts actual practice and a certificate of such nature can be given to him by the concerned Bar Association or by the concerned Court where he is practicing or even from any of the judicial or quasi judicial forums where he may be practicing. A certificate issued by the Bar Association of the concerned Court would have the same force as that of a certificate from any other judicial or quasi judicial authority and he, therefore, is not required to necessarily provide further proof of his experience.”
The Court explained with caution that in case of proof or documents to prove that the Advocate so concerned enrolls with the Bar Council, not practising law but doing any other business or other gainful employment, the same may result in being ousted from the Bar Council Rules. The Court further recommended State to consider amendment in Rules.
The Court pointed towards ‘practice of law’ as defined under the Rules of Legal Education 2008 as framed by the Bar Council of India under the Advocates Act, 1961, and Article 220 of the Constitution of India providing for restriction on practice after being a permanent Judge.
The Court expressed that “If a lawyer is regularly appearing in arbitration matters or is only practicing in the field of registration of documents or is appearing before a Wakf Board, Service Tribunal, Labour Courts, Industrial Tribunals and various other Central Administration Tribunals, Income Tax Appellate Tribunal or Distt. Consumer Courts and Commission, he or she cannot said to be not having an experience of practice at Bar limiting the practice to mean only appearing in the Court and that too having appearances in atleast 6 interim orders is limiting the participation of Advocate’s in the open competition for appointment of the ADA. Similarly is the situation of the DDAs.” It found the State Government’s decision for scrutinising experience based on such practice to be too circumscribe.
The Court further cited Section 24 of Criminal Procedure Code, 1973 (‘CrPC’) to clarify that the public prosecutors appointed by the State would be presumed to have practice for seven years to their credit, and that the State demanding another certificate or experience proof was nothing but a case of non-application of mind. The Court rejected thed State’s power to further examine the suitability of selected candidates recommended by PPSC for appointment, stating that the same would amount to allowing State to act arbitrarily and reject persons found to be meritorious by the examining authority. The Court relied on Article 320 of Constitution empowering the Commission to conduct the selection process.
The Court explained that the only power available with the State for examining suitability of candidates was with the antecedents or medical fitness for such post, or finding forgery or impersonation, or in case of selection process suffering from nepotism or favouritism. Since the State did not claim any of such grounds/circumstances in the instant matter, the Court found the action as ‘deplorable’. It further added that “Even the opinion placed on record is not based on any law or judgment and appears to have been given at the asking.”
Conclusion
The Court found the State demanding selected candidates to submit certificates not sustainable in law, wholly arbitrary, unjustified and not sustainable in law. The Court additionally viewed that ADAs were required to present the State Government’s case effectively befor ethe Courts, and the STate Government essentially intended to select advocates having rich experience of Court practice alone. But the method and manner adopted for the same vide letter dated 5-06-2023 was incorrect approach, and such conditions must be incorporated in the rules vide amendments, or a condition in the advertisement demanding a particular certificate at the stage of participation.
Therefore, the Court quashed and set aside the letter dated 5-06-2023 and directed the State to take immediate steps to proceed with filling the posts of ADAs and DDAs within 1 month.
[Jyotsana Rawat v. State of Punjab, 2023 SCC OnLine P&H 2362, decided on 13-10-2023]
Advocates who appeared in this case :
Senior Advocate Gurminder Singh, Advocate Jatinder Singh Gill, Advocate Shivender Pal Singh, Advocate Sheena Khanna, Advocate Naresh Kaushal, Advocate Anil Kumar Garg, Advocate Kanav Bansal, Advocate Anshul Sharma, Advocate S.S. Thakur, Advocate Pardhuman Garg, Advocate Karan Nehra, Advocate Abhay Josan Advocate Harvinder Singh, Advocate V.K. Sandhir, Senior Advocate B.S. Sidhu, Advocate Charan Singla, Advocate Tarun Bhatta, Advocate D.S.Nalwa, Senior Advocate D.S. Patwalia, Advocate Kannan Malik, Advocate Prateek Mahajan, Advocate Daanish Mahajan, Advocate Atul Goyal, Additional Advocate General of Punjab Vikas Arora
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