# Arun Kumar Dubey & Anr v. High Court of Judicature at Allahabad & Anr

- **Citation:** (2014) 3 ILRA 1536
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-15
- **Case number:** Civil Misc. Writ Petition No. 58755 of 2014
- **Bench:** Dilip Gupta, Manoj Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arun-kumar-dubey-anr-v-high-court-of-judicature-at-allahabad-anr-43065
- **Pages:** 7

## Headnote

Constitution of India, Art.-233(2)-Higher
judicial
services-petitioner
declared
successful in preliminary examinationaggrieved by corrigendam issued on
26.06.2014 by which 7 years experience
shall be read in view of law laid down in
Sanjay Agrawal case-meaning thereby
the date on which advertisement made-
3 All]. Arun Kumar Dubey & Anr. Vs. High Court of Judicature at Allahabad & Anr.
1537
petitioner must have possess 7 years
experience as an Advocate-which as per
terms clause 2 of advertisement 7 years
was to be counted as on next January of
the year-held-corrigendam issued by
High Court-being strict in accordance
with decision of Supreme Court in Tej
Prakash Pathak & C. Channabasavaih-no
interference required.
Held: ParaThe list which has been published by the
High Court seeks to give effect to the
corrigendum by including the names of
such candidates who satisfy the essential
requirement
after
excluding
those
candidates who may have been declared
eligible earlier but are actually not eligible.
Mere declaration in the earlier list that they
were
successful
in
the
preliminary
examination does not create in them a right
to appear at the main examination even if
they are not eligible. The decisions of the
Supreme Court in Tej Prakash Pathak
(supra) and C. Channabasavaih (supra),
therefore, do not help the petitioners.
Case Law discussed:
(2013) 4 SCC 540; AIR 1965 SC 1293; (2007)
3 UPLBEC 2558; (2013) 5 SCC 277.

## Text

1536
 INDIAN LAW REPORTS ALLAHABAD SERIES
allowances of the examiners only. The power
to levy development fee from students of the
self financed colleges cannot be traced to
section 21(1)(viii) of the Act. So far as the
judgement of Hon'ble Single Judge in writ
petition no.67119 of 2011 is concerned, it
may be noticed that the specific issue
requiring adjudication by this Court was not
the question under consideration therein.
Moreover, the provisions, which have been
noticed above, were not pressed, and
therefore, the judgement delivered in that
matter cannot come to the rescue of the
respondent university. The judgement of
Hon'ble Supreme Court in Municipal
Council (supra) also has no applicability to
the facts of the present case inasmuch as the
judgement of the Apex Court dealt with the
fixation of fee by the municipality and the
question was as to whether the levy was a fee
or tax. The judgements relied upon by Sri
Vivek
Verma,
therefore,
have
no
applicability to the facts of the present case.
15. Considering the aforesaid facts and
circumstances of the case, this Court finds
that the demand of the university to levy
development fee since is not backed by the
appropriate statutory provision, therefore, it
cannot be sustained. The law is otherwise
settled that if the statute requires a thing to be
done in a particular manner, it has to be done
in that matter alone and no other procedure
for the purpose can be resorted. Once the Act
provides the procedure for determination of
fee, the university was bound to have
charged fee only in such manner and its
decision to levy the development fee without
complying with the provisions of the Act
cannot be sustained. Consequently, writ
petition succeeds and is allowed.
16. The decision of the Executive
Council held in its meeting dated
2.11.2011
and
27.2.2013
as
communicated vide order of the Registrar
dated 15.7.2013, insofar as it raises a
demand for payment of Rs. 500/- as
development fee from the students of self
financed institutions, is quashed. This
Court had passed an interim order,
whereby
the
amount
collected
as
development fee was directed to be kept
in a separate deposit by the university.
Since the writ petition has been allowed,
it is provided that the amount in this
regard, kept with the university shall be
returned to the colleges, with a further
direction to the colleges to return such
amount to the students concerned.
17. No order, however, is passed as
to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.11.2014
BEFORE
THE HON'BLE DILIP GUPTA, J.
THE HON'BLE MANOJ MISRA, J.
Civil Misc. Writ Petition No. 58755 of 2014
Arun Kumar Dubey & Anr.
.Petitioners
Versus
High Court of Judicature at Allahabad &
Anr.
...Respondents
Counsel for the Petitioners:
Sri Jitendra Kumar, Sri Prasoon Tomar
Counsel for the Respondents:
Sri Manish Goyal, Sri Ravi Kant
Constitution of India, Art.-233(2)-Higher
judicial
services-petitioner
declared
successful in preliminary examinationaggrieved by corrigendam issued on
26.06.2014 by which 7 years experience
shall be read in view of law laid down in
Sanjay Agrawal case-meaning thereby
the date on which advertisement made-
3 All]. Arun Kumar Dubey & Anr. Vs. High Court of Judicature at Allahabad & Anr.
1537
petitioner must have possess 7 years
experience as an Advocate-which as per
terms clause 2 of advertisement 7 years
was to be counted as on next January of
the year-held-corrigendam issued by
High Court-being strict in accordance
with decision of Supreme Court in Tej
Prakash Pathak & C. Channabasavaih-no
interference required.
Held: ParaThe list which has been published by the
High Court seeks to give effect to the
corrigendum by including the names of
such candidates who satisfy the essential
requirement
after
excluding
those
candidates who may have been declared
eligible earlier but are actually not eligible.
Mere declaration in the earlier list that they
were
successful
in
the
preliminary
examination does not create in them a right
to appear at the main examination even if
they are not eligible. The decisions of the
Supreme Court in Tej Prakash Pathak
(supra) and C. Channabasavaih (supra),
therefore, do not help the petitioners.
Case Law discussed:
(2013) 4 SCC 540; AIR 1965 SC 1293; (2007)
3 UPLBEC 2558; (2013) 5 SCC 277.
(Delivered by Hon'ble Dilip Gupta, J.)
1. The petitioners, who had responded
to the advertisement issued by the High Court
for making appointment by direct recruitment
to the Uttar Pradesh Higher Judicial Services
and had appeared at the preliminary
examination held in 2014, have filed this
petition for quashing the corrigendum dated
26 June 2014 published by the High Court as
well as the list of candidates previously
declared successful as now ineligible due to
short practice on the date of application in
terms of the corrigendum.
2.

The
minimum
essential
qualifications
as
prescribed
in
the
advertisement are as follows
"2.MINIMUM
ESSENTIAL
QUALIFICATIONS A candidate must be
an Advocate of not less than seven years
standing as on 01st day of January, 2015.
The applicants must fulfil the essential
requirements of the post and other
conditions stipulated in the Uttar Pradesh
Higher Judicial Service Rules, 1975.
Note:Prosecuting Officers/Assistant
Prosecuting Officers are treated to be an
Advocate
and
eligible
as
per
the
Judgement of Hon'ble Supreme Court in
Civil Appeal No.561 of 2013-Deepak
Agarwal Vs. Keshav Kaushik & Others."
3. The petitioners submitted their
applications which were required to be
filled online from 19 May 2014 to 18 June
2014. As the petitioners stated that they
were Advocates who would have not less
than seven years standing as on 1 January
2015, they were issued admit-cards and
they
appeared
at
the
preliminary
examination held on 20 July 2014. Their
names were included in the list of
successful candidates declared on 24 July
2014.
4. A corrigendum dated 26 June
2014 had, however, been issued by the
High Court which is as follows :
"In the paragraph no.2 (Minimum
Essential
Qualifications)
of
the
"Instructions" in place of words "....of not
less than 7 years standing as on
01.01.2015..." the words "....of not less
than 7 years standing as on the date of
application ......" shall be read in view of
the law declared in High Court of
Judicature, Allahabad & Etc. Vs. Sanjay
Agarwal & Anr. Etc. and Deepak
Agarwal Vs. Keshav Kaushik & Ors. by
the Hon'ble Supreme Court."
1538
 INDIAN LAW REPORTS ALLAHABAD SERIES
5. In view of the aforesaid
corrigendum, a list of candidates who had
previously been declared successful but
found to be ineligible due to shortpractice as on the date of application was
declared on 21 October 2014. The names
of the two petitioners are included in the
list as they are not Advocates of not less
than seven years standing as on the date
of application.
6.
Learned counsel for the petitioners
has submitted that it was not open to the High
Court to make any change in the eligibility
criteria after the last date of submission of the
application as that would be violative of
Articles 14 and 16 of the Constitution. In
support of his contention, learned counsel for
the petitioners has placed reliance upon the
judgment rendered by the Supreme Court in
Tej Prakash Pathak & Ors. Vs. Rajasthan
High Court & Ors.1 and C. Channabasavaih
& Ors. Vs. State of Mysore & Ors.2. It is also
his contention that once the petitioners had
appeared at the preliminary examination and
had been declared successful on 24 July 2014,
it was not open to the High Court to
subsequently declare the petitioners ineligible
in view of the revised eligibility criteria
contained in the corrigendum dated 26 June
2014. In this connection, learned counsel for
the petitioners submitted that though the
impugned corrigendum has been issued in
view of the law declared by the High Court in
Sanjay Agarwal etc. etc. Vs. State of U.P. &
Anr.3 and the decision of the Supreme Court
in Deepak Agarwal Vs. Keshav Kaushik &
Ors.4, but the Supreme Court in Deepak
Agarwal (supra) has not held that the
candidate must be an Advocate of not less
than seven years standing as on the date of
application. It is his contention that the
advertisement issued by the High Court was
in accordance with the provisions of Rule
5(c) of the U.P. Higher Judicial Service
Rules, 19755 which provide that the
recruitment to the service shall be made by
direct
recruitment
from
amongst
the
Advocates of not less than seven years
standing on the first day of January next
following the year in which the notice
inviting the application is published.
7.
Sri Ravi Kant, learned Senior
Counsel appearing for the High Court
assisted by Sri Manish Goyal has, however,
submitted that the Division Bench of this
Court in Sanjay Agarwal (supra) has
declared Rule 5(c) of the Rules to the extent
it provides "on the first day of January next
following the year in which the notice
inviting application is published" as ultra
vires Article 233(2) of the Constitution
and, accordingly, struck down this portion
of the Rule. He has further pointed out that
initially an interim order was granted by
the Supreme Court in Special Leave
Petition No.17212 of 2007 filed by the
High Court to assail the order passed in
Sanjay Agarwal (supra), but it was
ultimately disposed of by the Supreme
Court on 21 February 2014 in terms of the
judgment rendered by the Supreme Court
in Deepak Agarwal (supra). It is his
submission that the corrigendum was
issued by the High Court on 26 June 2014
to give effect to the judgment of the High
Court in Sanjay Agarwal (supra) and the
judgment of the Supreme Court in Deepak
Agarwal (supra).
8.

We
have
considered
the
submissions advanced by learned counsel
for the parties.
9. Recruitment to the Uttar Pradesh
Higher Judicial Service is made in
accordance with the Rules. Rule 5(c) of
the Rules, which had been challenged in
Sanjay Agarwal (supra), reads as follows:
3 All]. Arun Kumar Dubey & Anr. Vs. High Court of Judicature at Allahabad & Anr.
1539
"5. Sources of recruitment.--The
recruitment to the service shall be made -
(a) ............
(b) .............
(c) by direct recruitment from
amongst the Advocates of not less than
seven years standing on the first day of
January next following the year in which
the
notice
inviting
applications
is
published."
10. It was contended before the
Division Bench in Sanjay Agarwal
(supra) that the aforesaid provision
permits even such Advocates who have
less than seven years of standing at the
bar as on the date of submission of
application
to
be
considered
for
appointment because the cut-off date for
the purpose of determining the standing at
the bar has been fixed as the first day of
January of the next following year in
which the notice inviting application is
published. In this connection it was
pointed out that though the notice in
question had been published on 31 March
2007, but the cut-off date was notified as
1 January 2008 which would mean that an
Advocate of less than seven years
standing at the bar as on 31 March 2007
would also be eligible to appear in the
selection. The Division Bench held that
Rule 5(c) of the Rules, to the extent it
provides "on the first day of January next
following the year in which the notice
inviting application is published", is ultra
vires Article 233(2) of the Constitution
and, therefore, struck down that portion.
The observations of the Court are as
follows :
"(51) A perusal of the aforesaid
makes it clear that for the purpose of
discharging
its function
of
making
recommendation
for
appointment
of
District Judges from Bar an advertisement
shall be published by the Court in various
leading news papers of the State. The
applications shall be received by the
Registrar of the High Court as well as the
District Judges within whose jurisdiction
the candidates has been practicing. All the
applications shall be accompanied by the
certificate of age, academic qualifications,
character standing as legal practitioner
and other documents. The District Judges
while forwarding the applications to the
Court would also submit their own
comments with respect to each candidate's
character and fitness for appointment to
the
service.
All
these
applications
thereafter shall be processed by the
selection committee constituted under
Rule
16
who
shall
also
conduct
examination
including
interview.
Thereafter the selection committee shall
prepare a list and submit the record of all
the candidates to the Chief Justice
alongwith its own recommendation with
respect to the names of the candidates in
order of merit who in its opinion are
suitable for appointment in the service.
Rule 18 sub-rule 3 term the entire
exercise undertaken by the selection
committee as "preliminary selection".
Under Rule 18(4) the Court thereafter
shall examine the recommendations of the
selection committee and prepare a list of
selected candidates in order of merit
which shall be forwarded to the Governor.
Therefore, all the steps commencing from
Rule 17(1) to Rule 18(4) are integrally
connected
with
the
process
of
recommendation of the Court and it
cannot be said that the 'recommendation'
means only the final list sent to the
Governor and earlier thereto it is
something unconnected and distinct from
recommendation. Here the process of
recommendation therefore commences on
1540
 INDIAN LAW REPORTS ALLAHABAD SERIES
31.3.2007 which may have completed
thereafter. Presently as per directions of
the Apex Court outer limit is 2.1.2008. If
that be so, for the purpose of eligibility of
an advocate for recommendation and
appointment as District Judge, the length
of his standing as an advocate has to be
seen at least on the date when the process
of
recommendation
commences
and
cannot depend on a date when the formal
letter is ultimately issued. Since Rule 5(a)
as it initially enacted 1975 Rules has
already
undergone
amendment
and
presently it is Rule 5(c) which is on the
statute book therefore there is no occasion
to consider the validity of Rule 5(a) of
1975 Rules. So far as Rule 5(c) of 1975
Rules as it stands vide 6th Amendment
dated 9.1.2007, we have no hesitation to
hold it inconsistent and contrary to Article
233(2) of the Constitution of India and
therefore is ultra vires to the extent it says
''on the first day of January next following
the year in which the notice inviting
application is published", the said rule is
liable to be struck down.
(52) Consequently clause 2 of the
instructions of the advertisement in so far
as it provides the cut off date as 1.1.2008
is also declared illegal and accordingly
quashed.
..................
(76) Thus only those petitioners who
were enrolled as Advocates and have
practiced as such for 7 years are eligible
to appear in Higher Judicial Service
Examination of U.P. and cannot be
disqualified only on the ground that
presently they have been appointed as
APP/APOs. However, those who were
never enrolled as an Advocate under 1961
Act will not be entitled to be considered
under Article 233 of the Constitution of
India. Issue no. 5 is decided accordingly.
RESULT
1. ......
2. Rule 5(c) of U.P. Higher Judicial
Service Rules, 1975 to the extent it reads
" on the first day of January next
following the year in which notice
inviting application is published", is held
illegal and ultra vires of Article 233 (2) of
the Constitution of India and to that extent
it is struck down.
3. Clause (2) of the instructions of
the advertisement dated 31.3.2007 in so
far as it provides the cut-off date as
1.1.2008 for determining experience of an
advocate is declared illegal and to that
extent it is quashed.
4. ......
5. ......
6. ......"
11. As noticed above, the High
Court had filed a Special Leave Petition
in the Supreme Court to assail the order
passed
in
Sanjay
Agarwal
(supra).
Initially an interim order was granted by
the Supreme Court but the Special Leave
Petition was ultimately disposed of on 21
February 2014 in terms of the judgment
of the Supreme Court rendered in Deepak
Agarwal (supra). The order passed by the
Supreme Court is as follows :
"Heard learned counsel for the
parties and also perused the application
for appropriate directions.
The
Special
Leave
Petition
Nos.17201-17212 of 2007 are taken on
record and disposed of in terms of the
judgment of this Court in Deepak
Agarwal v. Keshav Kaushik & Ors.
(2013) 5 SCC 277."
12. In Deepak Agarwal (supra)
issues had arisen before the Supreme
Court in regard to Haryana Superior
Judicial Service Rules, 2007. Rule 11
3 All]. Arun Kumar Dubey & Anr. Vs. High Court of Judicature at Allahabad & Anr.
1541
which prescribes the qualifications for
direct recruits is as follows:
"Rule 11. The qualifications for
direct recruits shall be as follows :
(a) must be a citizen of India;
(b) must have been duly enrolled as
an Advocate and has practiced for a
period not less than seven years;
(c) must have attained the age of
thirty five years and have not attained the
age of forty years on the 1st day of
January of the year in which the
applications for recruitment are invited."
13. It would be seen that the
aforesaid Rule prescribes that in order to
be eligible, a person must have been
enrolled as an Advocate and practiced for
a period not less than seven years.
14.

Article
233(2)
of
the
Constitution deals with appointment of
District Judges and is as follows :
"A person not already in the service
of the Union or of the State shall only be
eligible to be appointed a district judge if
he has been for not less than seven years
an advocate or a pleader and is
recommended by the High Court for
appointment."
15. The expression "if he has been
for not less than seven years an Advocate"
was interpreted by the Supreme Court in
Deepak Agarwal (supra) to mean "seven
years
as
an
Advocate
immediately
preceding the application" and, therefore,
the Supreme Court observed that one of
the essential requirements articulated by
the expression in Article 233(2) is that
such person must with the requisite period
be continuing as an Advocate on the date
of application.
16. Rule 5(c) after deletion of the
portion found to be ultra vires by a
Division Bench of this Court in Sanjay
Agarwal (supra) would read as follows :
"5(c) By direct recruitment from
amongst the Advocates of not less than
seven years standing."
17. Thus, in view of the decision of
the Supreme Court in Deepak Agarwal
(supra), no exception can be taken to the
corrigendum issued by the High Court for
bringing the advertisement in accordance
with the decision rendered by the High
Court in Sanjay Agarwal (supra) and the
decision of the Supreme Court in Deepak
Agarwal (supra) by prescribing that the
candidate should have not less than seven
years standing as on the date of application.
18. The contention of learned counsel
for the petitioners that the eligibility criteria
cannot be changed after the expiry of last date
of submission of the application form cannot
be
accepted.
The
advertisement
had
prescribed essential qualifications in terms of
Rule 5(c) of the Rules. The Division Bench of
this Court in Sanjay Agarwal (supra), as
noticed above, had declared that portion of the
said rule which prescribes "not less than seven
years standing on the first day of January next
following the year in which the notice inviting
application is published" to be ultra vires
Article 233(2) of the Constitution. The Special
Leave Petition filed by the High Court was
disposed of by the Supreme Court in terms of
the judgment rendered by the Supreme Court
in Deepak Agarwal (supra). The Supreme
Court, while interpreting Article 233(2) of the
Constitution, has observed that the essential
requirement is that such person must with
requisite period be continuing as an Advocate
on the date of the application.
19.
The petitioners, therefore, cannot
insist that the High Court should continue
1542
 INDIAN LAW REPORTS ALLAHABAD SERIES
with the recruitment on the basis of a
qualification prescribed in the advertisement
which had been struck down by the High
Court in Sanjay Agarwal (supra). The
corrigendum seeks to ensure that the
essential qualification for recruitment is in
terms of the judgment of the Supreme Court
in Deepak Agarwal (supra).
20.
This apart, the issuance of the
corrigendum after the last date of submission
of the applications would not be contrary to
Articles 14 and 16 of the Constitution as
there can possibly be no candidate who can
contend that he would have applied if this
essential qualification was mentioned in the
initial advertisement but has been prevented
from submitting the application since the last
date has expired. On the other hand, the
corrigendum, which seeks to ensure that the
advertisement is in accordance with the law
declared by the High Court and the Supreme
Court, only reduces the number of candidates
who had applied.
21.
The list which has been
published by the High Court seeks to give
effect to the corrigendum by including the
names of such candidates who satisfy the
essential requirement after excluding
those candidates who may have been
declared eligible earlier but are actually
not eligible. Mere declaration in the
earlier list that they were successful in the
preliminary examination does not create
in them a right to appear at the main
examination even if they are not eligible.
The decisions of the Supreme Court in
Tej Prakash Pathak (supra) and C.
Channabasavaih (supra), therefore, do not
help the petitioners.
22. There is, therefore, no merit in
this petition. It is, accordingly, dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.11.2014
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
Civil Misc. Writ Petition No. 60486 of 2014
Ravi Kumar
...Petitioner
Versus
Union of India & Ors.
...Respondents
Counsel for the Petitioner:
Sri Devesh Kumar Verma, Sri Suresh
Chandra Verma
Counsel for the Respondents:
A.S.G.I., Sri Vikash Budhwar
Constitution of India, Art.-226-Legality
of
Brochure
clause-10-definition
of
'family'
-challenged as discriminatorySelection of dealership for Regular and
Rural
out
let-affording
clause
of
definition of family included parent,
unmarried
brother
and
sister
while
applicant
bachelor-but
excludes
the
parties
if
married-such
discrimination/disqualification
without
any rational basis-held-distribution of
larges of state to suberve the common
good of as many as possible-economic
and social justice sought to achieved
having reasonable nexus between object
and
prescribed of eligibility criteriapetition dismissed.
Held: Para-7
In view of the decision of the Supreme
Court, noted above, such a qualification
cannot be said to be arbitrary. Hence, we
do not see any merit in the matter. The
writ petition is, accordingly, dismissed.
There shall be no order as to costs.
Case Law discussed:
(1995) 1 SCC 85