# Bindu v. Hon'ble High Court of Judicature at Allahabad & Anr

- **Citation:** (2022) 5 ILRA 1036
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-22
- **Case number:** Writ A No.17936 of 2021
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bindu-v-hon-ble-high-court-of-judicature-at-allahabad-anr-48395
- **Pages:** 6

## Headnote

Sri Ashish Mishra, Sri Rahul Agarwal

Construction of the expression, "if he has
been for not less than seven years an
advocate"
in
Article
233(2)
of
the
Constitution - This expression means seven
years as an advocate immediately preceding the
application and not seven years any time in the
past. This is clear by use of 'has been'. The
present perfect continuous tense is used
for a position which began at some time in
the past and is still continuing. Therefore,
one of the essential requirements articulated by
the above expression in Article 233(2) is that
such person must with requisite period be
continuing as an advocate on the date of
application. (Para 4)

The term used "has been" is interpreted to
mean seven years and has to be in present
perfect continuous tense and not has been
seven years during any period. (Para 6)

B. In view of the interpretation of Article
233, rules debarring judicial officers from
staking their claim as against the posts
reserved for direct recruitment from bar
are not ultra vires as rules are subservient
to the provisions of the Constitution.

- U/Article 232(2), an Advocate or a pleader
with 7 years of practice can be appointed as
District Judge by way of direct recruitment in
case he is not already in the judicial service of
the Union or a State.

- For the purpose of Article 233(2), an
Advocate has to be continuing in practice for not
less than 7 years as on the cut-off date and at
the time of appointment as District Judge.
Members of judicial service having 7 years'
experience of practice before they have joined
the service or having combined experience of 7
years as lawyer and member of judiciary, are
not eligible to apply for direct recruitment as a
District Judge.

- The rules framed by the High Court
prohibiting judicial service officers from
staking claim to the post of District Judge
against the posts reserved for Advocates
by way of direct recruitment, cannot be
said to be ultra vires and are in conformity
with Articles 14, 16 and 233 of the
Constitution of India. (Para 7)

In case on hand, the petitioner ceased to be an
Advocate under the Advocates Act, 1961 in
August 2017 when she got selected as
EXAMINER OF TRADE MARK & G.I. It is
submitted by learned counsel at that time she
surrendered her practicing licence. Thereafter in
the year 2019, she was selected as Public
Prosecutor in CBI where she is still working. The
petitioner is a Public Prosecutor at present but
5 All. Bindu Vs. Hon'ble High Court of Judicature at Allahabad & Anr.
1037
as Public Prosecutor, she has not put in
continuous service of 7 years. (Para 8)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

1036 INDIAN LAW REPORTS ALLAHABAD SERIES

11. Selected candidates are already working
and being paid salary in pursuance to the interim
order passed by this Court dated 07.02.2018.
Obviously, the educational testimonials and
training documents have been verified by the
District Inspector of Schools before paying the
salary in compliance of the interim order of this
Court.

12. In view of the above, the impugned
order dated 19.12.2017 is hereby quashed.
Consequences shall accordingly follow as per law.

13. The petition is allowed.
----------
(2022)05ILR A1036
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.03.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Writ A No.17936 of 2021

Bindu ...Petitioner
Versus
Hon'ble High Court of Judicature at
Allahabad & Anr. ...Respondents

Counsel for the Petitioner:
Sri Vijay Tripathi

Counsel for the Respondents:
Sri Ashish Mishra, Sri Rahul Agarwal

Construction of the expression, "if he has
been for not less than seven years an
advocate"
in
Article
233(2)
of
the
Constitution - This expression means seven
years as an advocate immediately preceding the
application and not seven years any time in the
past. This is clear by use of 'has been'. The
present perfect continuous tense is used
for a position which began at some time in
the past and is still continuing. Therefore,
one of the essential requirements articulated by
the above expression in Article 233(2) is that
such person must with requisite period be
continuing as an advocate on the date of
application. (Para 4)

The term used "has been" is interpreted to
mean seven years and has to be in present
perfect continuous tense and not has been
seven years during any period. (Para 6)

B. In view of the interpretation of Article
233, rules debarring judicial officers from
staking their claim as against the posts
reserved for direct recruitment from bar
are not ultra vires as rules are subservient
to the provisions of the Constitution.

- U/Article 232(2), an Advocate or a pleader
with 7 years of practice can be appointed as
District Judge by way of direct recruitment in
case he is not already in the judicial service of
the Union or a State.

- For the purpose of Article 233(2), an
Advocate has to be continuing in practice for not
less than 7 years as on the cut-off date and at
the time of appointment as District Judge.
Members of judicial service having 7 years'
experience of practice before they have joined
the service or having combined experience of 7
years as lawyer and member of judiciary, are
not eligible to apply for direct recruitment as a
District Judge.

- The rules framed by the High Court
prohibiting judicial service officers from
staking claim to the post of District Judge
against the posts reserved for Advocates
by way of direct recruitment, cannot be
said to be ultra vires and are in conformity
with Articles 14, 16 and 233 of the
Constitution of India. (Para 7)

In case on hand, the petitioner ceased to be an
Advocate under the Advocates Act, 1961 in
August 2017 when she got selected as
EXAMINER OF TRADE MARK & G.I. It is
submitted by learned counsel at that time she
surrendered her practicing licence. Thereafter in
the year 2019, she was selected as Public
Prosecutor in CBI where she is still working. The
petitioner is a Public Prosecutor at present but
5 All. Bindu Vs. Hon'ble High Court of Judicature at Allahabad & Anr.
1037
as Public Prosecutor, she has not put in
continuous service of 7 years. (Para 8)

Writ petition dismissed. (E-4)

Precedent followed:

1. Satish Kumar Sharma Vs Bar Counsel of HP,
(2001) 2 SCC 365 (Para 5)

2. Shashank Singh & ors. Vs Hon'ble High Court
of Judicature at Allahabad & anr., Writ-A No.
27120 of 2018, decided on 03.12.2021 (Para 7)

Precedent distinguished:

1. Deepak Aggrawal Vs Keshav Kaushik & ors.,
(2013) 5 SCC 277 (Para 2)

Present petition challenges the order
dated 22.10.2021.

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Ajai Tyagi, J.)

1. Heard Sri Vijay Tripathi, learned
counsel for the petitioner and Sri Rahul
Agarwal, learned counsel for the High
Court-respondents.

2. The petitioner has prayed for the
following reliefs:

"I. issue a writ, order or direction
in the nature of certiorari quashing the
impugned rejection order dated 22/10/2021
(Annexure No.1 to this writ petition).

II. issue a writ, order or direction
in the nature of mandamus commanding
and directing the respondents to allow the
petitioner
to
participate
in
selection
process of U.P. Higher Judiciary Services,
2020.

III. to issue any other writ, order
or direction which this Hon'ble court may
deem fit and proper in the facts and
circumstances of the case."

3. The facts in nutshell for our
purpose are that the petitioner applied for
being appointed as a Judicial Officer in the
U.P. State Higher Judicial Services, the
clinching aspect which is under challenge
is that the High Court after the petitioner
had cleared the preliminary exam, she was
not permitted to appear for final exams, on
the ground that on interpretation of the
rules and placing reliance on the judgment
of the Apex Court in Deepak Aggrawal v.
Keshav Kaushik and others, (2013) 5
SCC 277 the committee found that the
petitioner
does
not
have
continuous
practice for seven years on date of
exam/filling form. The High Court on its
administrative
side
conveyed
to
the
petitioner that she was not qualified as per
rules.

3. Shri Jitendra Kumar holding brief
of the counsel appearing on behalf of
petitioner has contended that the petitioner
has passed preliminary exams and is
practicing as a public prosecutor since
2019. Learned counsel for petitioner also
places reliance on the judgment of the
Apex Court in Deepak Aggrawal (supra).

4. At this juncture, it would be
relevant for us to verbatim refer to
paragraphs no.101 and 102, of decision
titled Deepak Aggawal (Supra) which we
verbatim reproduce as under:

"101. The Division Bench has in
respect of all the five private appellants -
Assistant
District
Attorney,
Public
Prosecutor and Deputy Advocate General -
recorded undisputed factual position that
they were appearing on behalf of their
respective States primarily in criminal/civil
cases
and
their
appointments
were
1038 INDIAN LAW REPORTS ALLAHABAD SERIES
basically under the C.P.C. or Cr.P.C. That
means their job has been to conduct cases
on behalf of the State Government/C.B.I. in
courts. Each one of them continued to be
enrolled with the respective State Bar
Council. In view of this factual position and
the legal position that we have discussed
above, can it be said that these appellants
were ineligible for appointment to the
office of Additional District and Sessions
Judge? Our answer is in the negative. The
Division Bench committed two fundamental
errors, first, the Division Bench erred in
holding that since these appellants were in
full-time
employment
of
the
State
Government/Central
Government,
they
ceased to be ''advocate' under the 1961 Act
and the BCI Rules, and second, that being
a member of service, the first essential
requirement under Article 233(2) of the
Constitution that such person should not be
in any service under the Union or the State
was attracted. In our view, none of the five
private appellants, on their appointment as
Assistant
District
Attorney/Public
Prosecutor/Deputy
Advocate
General,
ceased to be ''advocate' and since each one
of them continued to be ''advocate', they
cannot be considered to be in the service of
the Union or the State within the meaning
of Article 233(2). The view of the Division
Bench is clearly erroneous and cannot be
sustained.

102. As regards construction of
the expression, "if he has been for not less
than seven years an advocate" in Article
233(2) of the Constitution, we think Mr.
Prashant Bhushan was right in his
submission that this expression means
seven years as an advocate immediately
preceding the application and not seven
years any time in the past. This is clear by
use of ''has been'. The present perfect
continuous tense is used for a position
which began at some time in the past and is
still continuing. Therefore, one of the
essential requirements articulated by the
above expression in Article 233(2) is that
such person must with requisite period be
continuing as an advocate on the date of
application"

5. While perusing the grounds of
challenge, it is clear from the factual data
that petitioner cannot seek appointment
as Judicial Officer/District Judge in this
calendar year as the petitioner does not
fulfill the criteria fixed as per provisions
of Articles 233, 234 and 236 of the
Constitution of India and the rules for.
The question is whether the break in
practice
of
the
petitioner
can
be
condoned? The decision in Deepak
Aggarwal (supra) will not help the
petitioner as in our case the Rules
categorically mention and has been
interpreted to mean seven years in Satish
Kumar Sharma v. Bar Counsel of HP,
(2001) 2 SCC 365 will have to be looked
into. In our case, the petitioner herein
from a period of 2017 to 2019 was
employed and so there is brake in a legal
practice. The Rules framed have to be
construed so as to see that the purpose of
the legislation is not withered down.

6. The term used "has been" is
interpreted to mean seven years and has to
be in present perfect continuous tense and
not has been seven years during any period.
This interpretation will not permit us to
entertain this petition and grant the
mandamus to permit the petitioner to
appear in the exam.

7. The recent decision of the Division
Bench of this Court titled Shashank Singh
and others v. Hon'ble High Court of
Judicature at Allahabad and another,
Writ-A No.27120 of 2018 decided on
5 All. Bindu Vs. Hon'ble High Court of Judicature at Allahabad & Anr.
1039
3.12.2021 is also pressed in service by Shri
Rahul Agarwal, learned counsel for the
High Court-namely respondents where in it
is held:

"The subject matter of the writ
petition relates to the process of Direct
Recruitment to the U.P. Higher Judicial
Services-2018 (Part II). The Allahabad
High Court issued a Notification dated
12.11.2018 inviting applications for direct
recruitment to the Uttar Pradesh High
Judicial Service-2018 (Part-II);

For appreciating the arguments
raised on behalf of the writ petitioners, it
would be appropriate to refer to Rule 5 of
the U.P. Higher Judicial Service Rules
1975, which is reproduced as under:-

"5. Sources of recruitment.- The
recruitment to the Service shall be made-

a) by promotion from amongst
the Civil Judges (Senior Division) on the
basis of Principle of merit-cum-seniority
and passing a suitability test.

b) by promotion strictly on the
basis of merit through limited competitive
examination of
Civil
Judges
(Senior
Division) having not less than five years
qualifying service;

c) by direct recruitment from
amongst the Advocates of not less than
seven years standing as on the last date
fixed for the submission of application
forms.

The U.P. Higher Judicial Service
Rules, 1975 have been framed in exercise
of the power conferred by the Proviso to
Article 309 read with Article 233 of the
Constitution of India.

The
Article
233
of
the
Constitution of India has been recently
interpreted by the Hon'ble Apex Court in
the Civil Appeal No.1698 of 2020 (Dheeraj
Mor Vs. Hon'ble High Court of Delhi)
arising out of SLP (C) No.14156 of 2015
and other connected matters vide decision
dated February 19th, 2020 reported in
2020 SCC online SC 213. The Hon'ble
Apex Court after considering all aspects of
the matter observed as under:-

"59. In view of the aforesaid
interpretation of Article 233, we find that
rules debarring judicial officers from
staking their claim as against the posts
reserved for direct recruitment from bar
are not ultra vires as rules are subservient
to the provisions of the Constitution.

60. We answer the reference as
under:-

(i) The members in the judicial
service of the State can be appointed as
District Judges by way of promotion or
limited competitive examination.

(ii) The Governor of a State is the
authority for the purpose of appointment,
promotion, posting and transfer, the
eligibility is governed by the Rules framed
under Articles 234 and 235.

(iii) Under Article 232(2), an
Advocate or a pleader with 7 years of
practice can be appointed as District Judge
by way of direct recruitment in case he is
not already in the judicial service of the
Union or a State.

(iv) For the purpose of Article
233(2), an Advocate has to be continuing in
practice for not less than 7 years as on the
cut-off date and at the time of appointment
1040 INDIAN LAW REPORTS ALLAHABAD SERIES
as District Judge. Members of judicial
service having 7 years' experience of
practice before they have joined the service
or having combined experience of 7 years
as lawyer and member of judiciary, are not
eligible to apply for direct recruitment as a
District Judge.

(v) The rules framed by the High
Court prohibiting judicial service officers
from staking claim to the post of District
Judge against the posts reserved for
Advocates by way of direct recruitment,
cannot be said to be ultra vires and are in
conformity with Articles 14, 16 and 233 of
the Constitution of India.

(vi) The decision in Vijay Kumar
Mishra (supra) providing eligibility, of
judicial officer to compete as against the
post of District Judge by way of direct
recruitment, cannot be said to be laying
down the law correctly. The same is hereby
overruled.

61. In the case of Dheeraj Mor
and others cases, time to time interim
orders have been passed by this Court, and
incumbents
in
judicial
service
were
permitted to appear in the examination.
Though later on, this Court vacated the
said interim orders, by that time certain
appointments had been made in some of the
States and in some of the States results
have been withheld by the High Court
owing to complication which has arisen
due to participation of the ineligible inservice candidates as against the post
reserved for the practising advocates. In
the cases where such in-service incumbents
have been appointed by way of direct
recruitment from bar as we find no merit in
the petitions and due to dismissal of the
writ petitions filed by the judicial officers,
as sequel no fruits can be ripened on the
basis of selection without eligibility, they
cannot continue as District Judges.

They have to be reverted to their
original post. In case their right in channel
for promotion had already been ripened, and
their juniors have been promoted, the High
Court has to consider their promotion in
accordance with prevailing rules. However,
they cannot claim any right on the basis of
such an appointment obtained under interim
order, which was subject to the outcome of
the writ petition and they have to be
reverted."

8. In case on hand, the petitioner
ceased to be an Advocate under the
Advocates Act, 1961 in August 2017 when
she got selected as EXAMINER OF
TRADE MARK & G.I. It is submitted by
learned counsel at that time she surrendered
her practicing licence. Thereafter in the year
2019, she was selected as Public Prosecutor
in CBI where she is still working. The
petitioner is a Public Prosecutor at present
but as Public Prosecutor, she has not put in
continuous service of 7 years.

9. Hence, Deepak Aggarwal (supra)
cannot be made applicable to this case.
Paragraph 102 of the said decision which
has been quoted above will not permit us to
grant writ of mandamus for permitting the
petitioner in the exam, as she is not
qualified practicing period just when she
applied in pursuance to the advertisement
issued by the present respondents.

10. In view of these facts, this petition
fails and is dismissed.

11. We are thankful to both the
learned counsels for the parties for ably
assisting us.
----------
5 All. Gajendra Pratap Singh Vs. State of U.P. & Ors.
1041
(2022)05ILR A1041
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.03.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ A No. 11722 of 2021

Gajendra Pratap Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri R.K. Sinha, Sri A.K. Sinha

Counsel for the Respondents:
C.S.C., Sri Yogendra Singh Bohra

A. Service Law - Termination - U.P.
Government
Servant
(Discipline
and
Appeal)
Rules,
1999
-
U.P.
Basic
Education Staff Rules, 197 -; Persons
with Disabilities (Equal Opportunities,
Protection
of
Right)
and
Full
Participation Act, 1995 - Where an
appointment
has
been
obtained
by
fraud, the authority doesn't need to
follow
the
procedure
contemplated
under the rules for conducting enquiry
before passing the order of termination.
Where the appointment is obtained by fraud,
no opportunity of hearing is required to be
given. (Para 25, 26, 29)

B. The principles of natural justice, it is
well settled, cannot be put into a
straitjacket formula. Its application will
depend
upon
the
facts
and
circumstances of each case. It is also well
settled that if a party after having proper
notice chose not to appear, he at later stage
cannot be permitted to say that he had not
been given a fair opportunity of hearing. The
party should not only be required to show
that he did not have a proper notice resulting
in violation of principles of natural justice but
also to show that he was seriously prejudiced
thereby. (Para 25)
The principle of natural justice although is
required to be complied with, it has wellknown exceptions. Where on the admitted or
indisputable facts only one conclusion is possible
and under the law only one penalty is
permissible, the court may not issue its writ to
compel the observance of natural justice, not
because it is not necessary to observe natural
justice but because courts do not issue futile
writs. (Para 27)

C. A person who seeks equity must act in a
fair and equitable manner. It is settled in
law that when a person approaches Court u/Art.
226 of the Constitution of India, he should
approach the Court with clean hands. (Para 31)

D. Jurisdiction - This Court in its jurisdiction
u/Art. 226 of Constitution of India, where it is
established that appointment is obtained by
fraud, cannot allow fraud to perpetuate by
accepting a plea of a person that before
terminating his services, the proper procedure
for conducting an enquiry as contemplated in
the relevant rules should be followed. (Para 32)

E. Words & Phrases - Effect of fraud -
'Fraud' - Suppression of a material document
would also amount to a fraud on the Court.
(Para 29)

"Fraud" is a conduct either by letter or words,
which induces the other person or authority to
take a definite determinative stand as a
response to the conduct of the former either by
words or letter. Although negligence is not fraud
but it can be evidence on fraud. No judgment of
a Court, no order of a Minister, can be allowed
to stand if it has been obtained by fraud. Fraud
unravels
everything.
Fraud
vitiates
all
transactions known to the law of however
high a degree of solemnity.

It is a fraud in law if a party makes
representations, which he knows to be false,
and injury enures therefrom although the
motive
from
which
the
representations
proceeded may not have been bad. (Para 30)

In the present case, a perusal of disability
certificate dated 20.12.2002 issued by the office
of Chief Medical Officer, Banda reveals that the
said certificate mentioned 40% disability, but it