Himachal Pradesh High Court: In a petition challenging the appointment of Respondent 4 as Additional District and Sessions Judge, the Division Bench of M.S. Ramachandra Rao, CJ. *, and Satyen Vaidya, J., stated that Rule 5(c) of the Himachal Pradesh Judicial Service Rules, 2004 (‘2004 Rules’), clearly stated that it required practicing as an Advocate at the Bar of a minimum period of seven years as on the last date fixed for receipt of the applications. There was no requirement that such practice as an Advocate must be continuous as on the date of making application for the said post. Respondent 4 was in active practice, and he possessed cumulatively more than 7 years of active practice and hence, was eligible for the appointment to the post of Additional District and Sessions Judge.
Background
On 20-11-2022, Respondent 1-Himachal Pradesh High Court advertised posts of Additional District and Sessions Judge for appointment as Additional District and Sessions Judges in the Himachal Pradesh Judicial Services, from members of the Advocate community. The recruitment was initiated based on Himachal Pradesh Judicial Service Rules, 2004 (‘2004 Rules’). Subsequently, the petitioner appeared for the written test and qualified. Respondent 4 and the petitioner both got 127 marks in the written examination. Subsequently an interview was held and thereafter, Respondent 1 issued the selected list, which indicated that Respondent 4 was at the first position and petitioner was at the second position in the list.
Respondent 4 had enrolled in Bar Council of Punjab and Haryana on 24-07-2012 and joined the active practice as an advocate in the District and Sessions Court, Ambala. In 2015, he appeared for the District Legal Aid Officer Exam, 2014 conducted by the Madhya Pradesh High Court and was selected. He joined the service on 09-03-2015 as the District Legal Aid Officer Morena, Madhya Pradesh. After resigning from his post on 28-07-2015, he resumed his practice at the Bar in Ambala, Haryana. Thereafter, Respondent 4 appeared in Civil Judge Class-II Examination, 2015, conducted by the Madhya Pradesh High Court and was successful. Subsequently, he resigned from the said post and joined active practice as an Advocate at Ambala, Haryana and at the Punjab and Haryana High Court and was continuing his active practice.
Petitioner contended that the aforesaid admitted facts indicated that Respondent 4 had a clear break in practice as Advocate in view of his employment as District Legal Officer and Civil Judge Class-II in the judicial service of Madhya Pradesh. Therefore, he was ineligible to be appointed as Additional District and Sessions Judge in the State of Himachal Pradesh.
Analysis, Law, and Decision
The Court stated that Rule 5(c) of the 2004 Rules, clearly stated that it required practicing as an Advocate at the Bar of a minimum period of seven years as on the last date fixed for receipt of the applications. There was no requirement that such practice as an Advocate must be continuous as on the date of making application for the said post. Respondent 4 was in active practice from 24-07-2012 to 08-03-2015 (2 years 7 months); 28-7-2015 to 10-4-2016 (9 months) and from 11-5-2018 to 20-11-2022 (4 years 6 months). Thus, he possessed cumulatively more than 7 years of active practice and hence, was eligible for the appointment to the post of Additional District and Sessions Judge.
The Court referred to Rameshwar Dayal v. State of Punjab, 1960 SCC OnLine SC 123 and opined that the question whether the said two individuals should have had 7 years “continuous practice” as Advocate to be eligible for appointment as District judges did not arise in the case. What was decided was that the said individuals were eligible, though their names were not on the rolls of the Bar Council at the time of their appointment. Further, the Court stated that in Deepal Aggarwal v. Keshav Kaushik, (2013) 5 SCC 277, (‘Deepak Aggarwal case’) the expression “if he has been for not less than seven years an Advocate” was used, which means “seven years as an Advocate immediately preceding the application”. The Court questioned that whether it has held that a candidate must have continuous seven years practice preceding the application?
The Court noted that the petitioner had relied on Dheeraj Mor v. High Court of Delhi, (2020) 7 SCC 401 (‘Dheeraj Mor case’) and opined that the question that whether the candidates should have continuous practice as Advocates as on the date of their application, did not directly arose in the present case since the appellants before the Supreme Court were in Judicial service on the date of their application for said post. So, the question being considered in that case was only whether such persons could claim posts in direct recruitment meant for Advocates relying on their past practice of 7 years as an Advocate.
The Court disagreed with the view in Praveen Garg v. High Court of Delhi, W.P.(C) No. 17131 of 2022 decided on 15-12-2022 that the decisions in Dheeraj Mor case (supra) and Deepak Aggarwal case (supra) insisted that there ought to be continuous seven years practice for being eligible to be appointed as an Additional District Judge.
The Court did not accept the petitioner’s contention that Respondent 4 was ineligible to be appointed as Additional District Judge as per Rule 5(c) of the 2004 Rules. The Court held that Respondent 4 was eligible for such appointment and was rightly selected and recommended by the Himachal Pradesh High Court for such appointment and was rightly issued appointment order by the State of Himachal Pradesh.
Further, the Court noted that the Note under Rule 5(c) of 2004 Rules, which counted the period spent on judicial service by a candidate towards the 7-year periods of service as Advocate, was clearly contrary to the Dheeraj Mor case (supra), wherein it was held that “for constituting experience of 7 years of practice as Advocate, experience obtained in judicial service cannot be equated/combined.” Thus, the Court declared the ‘note’ below Rule 5(c) of 2004 Rules as unenforceable and accordingly, struck it down.
[Sandeep Sharma v. High Court of H.P., 2024 SCC OnLine HP 3048, decided on 11-07-2024]
*Judgment authored by- Chief Justice M.S. Ramachandra Rao
Advocates who appeared in this case :
For the Petitioner: Sanjeev Bhushan, Senior Advocate with Sohail Khan, Advocate.
For the Respondents: J.L Bhardwaj, Senior Advocate with Komal Chaudhary, Advocate; Arsh Rattan, Deputy Advocate General; Prateek Gupta, Praveen Chandel and Ashwani Sharma, Advocates.
