# Shashank Singh & Ors v. Hon'ble High Court of Judicature at Allahabad & Anr

- **Citation:** (2022) 1 ILRA 1126
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-03
- **Case number:** Writ-A No. 27120 of 2018
- **Bench:** Pritinker Diwaker, Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shashank-singh-ors-v-hon-ble-high-court-of-judicature-at-allahabad-anr-47640
- **Pages:** 7

## Headnote

A. Civil/Service matter-Constitution of
India,1950-Article
226-challenge
toprocess of direct recruitment to the
U.P.H.J.S. 2018-the petitioners were once
practicing advocate and later on got
selected as Judicial Officers-under Article
233 of the Constitution of India, a Judicial
officer regardless of his or her previous
experience, as an Advocate with 7 years
practice, cannot apply and compete for
appointment to any vacancy in the post of
District Judge, his ir her chance to occupy
the post would be through promotion in
accordance with the Rules framed under
Article 233 and Proviso to Article 309 of
the Constitution of India-One of the
essential requirements articulated by the
expression in Article 233(2) is that such
person must with requisite period be
continuing as an advocate on the date of
application and not seven years any time
in the past.(Para 1 to 14)

The writ petition is dismissed. (E-6)

List of Cases cited:

## Text

1126 INDIAN LAW REPORTS ALLAHABAD SERIES
which challenges the order passed by the
STAT dated 27.02.2020 whereby the appeal
of Gulsher Ahamad has been partly allowed
and matter has been remitted to the STA.

49. All the writ petitions along with
recall application fails and are hereby
dismissed.
----------
(2022)01ILR A1126
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.12.2021

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ-A No. 27120 of 2018

Shashank Singh & Ors. ...Petitioners
Versus
Hon'ble High Court of Judicature at
Allahabad & Anr. ...Respondents

Counsel for the Petitioners:
Sri Ashutosh MIshra

Counsel for the Respondents:
C.S.C., Sri Manish Goel

A. Civil/Service matter-Constitution of
India,1950-Article
226-challenge
toprocess of direct recruitment to the
U.P.H.J.S. 2018-the petitioners were once
practicing advocate and later on got
selected as Judicial Officers-under Article
233 of the Constitution of India, a Judicial
officer regardless of his or her previous
experience, as an Advocate with 7 years
practice, cannot apply and compete for
appointment to any vacancy in the post of
District Judge, his ir her chance to occupy
the post would be through promotion in
accordance with the Rules framed under
Article 233 and Proviso to Article 309 of
the Constitution of India-One of the
essential requirements articulated by the
expression in Article 233(2) is that such
person must with requisite period be
continuing as an advocate on the date of
application and not seven years any time
in the past.(Para 1 to 14)

The writ petition is dismissed. (E-6)

List of Cases cited:

1. Dheeraj Mor Vs Hon'ble High Court of Delhi
Civil Appeal No 1698 of 2020 arising out of
SLP(C) No. 14156 of 2015 & ors., reptd. 2020
SCC Online SC 213

2. Deepak Aggarwal Vs Keshav Kaushik & ors.
(2013) 5 SCC 277

(Delivered by Hon'ble Ashutosh
Srivastava, J.)

1. Heard Sri Ashutosh Mishra,
learned counsel for the petitioners and Sri
Ashish Mishra, learned counsel, who
represents the High Court, Respondent
No.1. The learned Standing Counsel has
accepted notice of the writ petition on
behalf of the Respondent No.2.

2. Sri Ashish Mishra, learned counsel
for the respondent High Court has filed
counter affidavit. Learned counsel for the
petitioners does not want to file rejoinder
affidavit. We, therefore, proceed to decide
the writ petition on merits.

3. 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) against 59
vacancies (SC-08, ST-01, OBC-16 and
Unreserved-34) in the pay scale of
Rs.51550-1230-58930-1380-63070
from
Advocates having not less than 7 years
standing as on the last date fixed for the
1 All. Shashank Singh & Ors. Vs. Hon'ble High Court of Judicature at Allahabad & Anr.
1127
submission of application forms, who must
have attained the age of 35 years and must
not have attained the age of 45 years as on
01.01.2019. The age limit was relaxed by 3
years in case of SC/ST/OBC category
candidates, but such candidates must not
have attained the age of 48 years as on
01.01.2019. 20% horizontal reservation for
women candidates belonging to the State of
U.P. only was provided. The applications
were required to be filed online. A
preliminary examination (objective type)
was to be held at Prayagraj (Allahabad) on
03.02.2019. Both Advocates practicing
within the State of U.P. and outside the
State of U.P. were eligible to apply, but
after obtaining requisite forwarding from
the District and Sessions Judge/Registrar
General/Registrar
of
the
High
Court/Secretary General of the Supreme
Court as applicable.

4. All the petitioners, who are five in
number, although enrolled with the Bar
Council of U.P. are members of the M.P.
Judicial Services and working as Judicial
Officers in the State of M.P. under the
supervision of the M.P. High Court at
Jabalpur. The petitioners are aggrieved by
Rule 5 of the U.P. Higher Judicial Service
Rules, 1975 insofar as it bars the Judicial
Officers
from
participating
in
the
recruitment process for filing up the
vacancies by direct recruitment.

5. It is contended on behalf of the
petitioners that the Rule 5 of the 1975
Rules is violative of the fundamental rights
of the petitioners and the source of direct
recruitment
cannot
be
restricted
to
practicing Advocates only. The petitioners
were once practicing Advocates and later
on got selected as Judicial Officers and
otherwise satisfy the eligibility criteria laid
down
in
the
notification
dated
12.11.2018 issued for filing up the
vacancies. The 1975 Rules are liable to be
declared unconstitutional to the extent it
excludes the persons possessing requisite
experience in the field of law of more than
7 years cumulatively as an Advocate and as
a Judicial Officer for being considered
eligible to appear in the U.P.H.J.S. Exams.

6. 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.

7. A perusal of the Rule 5 of the 1975
Rules reveals that the source of recruitment
to the U.P.H.J.S. is by promotion as also by
direct
recruitment.
The
source
of
recruitment by promotion is confined to
Judicial Officers [Civil Judge (Senior
Division)] while the source of direct
recruitment is confined to Advocates with
not less than 7 years standing.

8. The U.P. Higher Judicial Service
Rules, 1975 have been framed in exercise
1128 INDIAN LAW REPORTS ALLAHABAD SERIES
of the power conferred by the Proviso to
Article 309 read with Article 233 of the
Constitution of India.

9. Article 309 of the Constitution of
India deals with the recruitment and
conditions of service of persons serving the
Union or a State. The Article 309 provides
the competence for the Governor of a State
or such person as he may direct to make the
rules regulating the recruitment and the
conditions of service of persons appointed
to services and posts in connection with the
affairs of the State. Article 233 of the
Constitution of India deals with the
appointment of District Judges. The Article
233 of the Constitution of India is
reproduced here-under:-

"Article 233 of Constitution of India
"Appointment of District Judges"

(1) Appointments of persons to be, and
the posting and promotion of, district
judges in any State shall be made by the
Governor of the State in consultation with
the High Court exercising jurisdiction in
relation to such State.

(2) 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."

10. 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 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
1 All. Shashank Singh & Ors. Vs. Hon'ble High Court of Judicature at Allahabad & Anr.
1129
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."

11. It would be apt to also quote
the additional reasoning given by Justice S.
Ravindra Bhat, in respect of the issue
decided by the Hon'ble Apex Court.

"90. A close reading of Article 233,
other provisions of the Constitution, and
the judgments discussed would show
discloses the following:

(a) That the Governor of a State has
the authority to make "appointments of
persons to be, and the posting and
promotion of, district judges in any State
(Article 233 [1]);

(b) While so appointing the Governor
is bound to consult the High Court (Article
233 [1]:Chandra Mohan (supra) and
Chandramouleshwar Prasad v Patna High
Court 1970 (2) SCR 6662);

(c) Article 233 (1) cannot be construed
as a source of appointment; it merely
delineates as to who is the appointing
authority;

(d) In matters relating to initial
posting, initial appointment, and promotion
of District Judges, the Governor has the
authority to issue the order; thereafter it is
up to the High Court, by virtue of Article
235,
to
exercise
control
and
superintendence over the conditions of
service of such District Judges. (See State
of Assam v Ranga Mahammad 1967 (1)
SCR 4543);

(e) Article 233 (2) is concerned only
with eligibility of those who can be
considered for appointment as District
Judge. The Constitution clearly states that
one who has been for not less than seven
years, "an advocate or pleader" and one
who is "not already in the service of the
Union or of the State" (in the sense that
such person is not a holder of a civil or
executive post, under the Union or of a
State) can be considered for appointment,
1130 INDIAN LAW REPORTS ALLAHABAD SERIES
as a District judge. Significantly, the
eligibility- for both categories, is couched
in negative terms. Clearly, all that the
Constitution
envisioned
was
that
an
advocate with not less than seven years'
practise could be appointed as a District
Judge, under Article 233 (2).

(f) Significantly, Article 233 (2) ex
facie does not exclude judicial officers from
consideration for appointment to the post
of District Judge. It, however, equally does
not spell out any criteria for such category
of candidates. This does not mean however,
that if they or any of them, had seven years'
practise in the past, can be considered
eligible, because no one amongst them can
be said to answer the description of a
candidate who "has been for not less than
seven years" "an advocate or a pleader"
(per Deepak Agarwal, i.e. that the
applicant/candidate should be an advocate
fulfilling the condition of practise on the
date of the eligibility condition, or applying
for the post). The sequitur clearly is that a
judicial officer is not one who has been for
not less than seven years, an advocate or
pleader.

91. The net result of the decision in
Chandra Mohan (supra), and subsequent
decisions which followed it, is that Article
233 (2) renders ineligible all those who
hold civil posts under a State or the Union,
just as it renders all advocates with less
than seven years' practice ineligible, on the
date fixed for reckoning eligibility. Equally,
those in judicial service [i.e. holders of
posts other than District Judge, per Article
236 (2)] are not entitled to consideration
because the provision (Article 233 [2])
does not this part of the case it is sufficient
to say that there was consultation."
prescribe any eligibility condition. Does
this mean that any judicial officer, with any
length of service as a member of the
judicial service, is entitled to consideration
under Article 233 (2)? The answer is
clearly in the negative. This is because the
negative
phraseology
through
which
eligibility of holders of civil posts, or those
in civil service (of the State or the Union)
and advocates with seven years' service is
couched.
However,
the
eligibility
conditions are not spelt out in respect of
those who are in the judicial service.

92. The omission, - in regard to
spelling out the eligibility conditions vis-àvis judicial officers, to the post of District
Judge, in the opinion of this court, is
clearly by design. This subject matter is
covered by three provisions: Article 233
(1)- which refers to promotions to the post
of District Judge; Article 234, which, like
Article 233 (1) constitutes the Governor as
the appointing authority in respect of
judicial posts or services, (other than
District Judges), and like Article 233 (1),
subject to recommendation of the High
Court concerned. This position is most
definitely brought home by the fact that
Article 235 vests in the High Courts the
power of supervision and control of the
judicial service, "including the posting and
promotion of, and the grant of leave to,
persons belonging to the judicial service of
a State and holding any post inferior to the
post of district judge." The corollary to this
is that the Governor is appointing authority
for the post of District Judge, and other
judicial posts; both are to be filled after
prior consultation with the High Court, and
crucially, the promotion of judicial officers,
to the post of District Judge, is regulated by
conditions (read rules) framed by the High
Court."

96. In the opinion of this court, there
is an inherent flaw in the argument of the
petitioners. The classification or distinction
made- between advocates and judicial
officers, per se is a constitutionally
sanctioned one. This is clear from a plain
1 All. Shashank Singh & Ors. Vs. Hon'ble High Court of Judicature at Allahabad & Anr.
1131
reading of Article 233 itself. Firstly, Article
233 (1) talks of both appointments and
promotions. Secondly, the classification is
evident from the description of the two
categories in Article 233 (2): one "not
already in the service of the Union or of the
State" and the other "if he has been for not
less than seven years as an advocate or a
pleader". Both categories are to be
"recommended by the High Court for
appointment." The intent here was that in
both cases, there were clear exclusions, i.e.
advocates with less than seven years'
practice (which meant, conversely that
those with more than seven years' practice
were eligible) and those holding civil posts
under the State or the Union. The omission
of judicial officers only meant that such of
them,
who
were
recommended
for
promotion, could be so appointed by the
Governor.
The
conditions
for
their
promotion were left exclusively to be
framed by the High Courts.

101. The Constitution makers, in the
opinion of this court, consciously wished
that members of the Bar, should be
considered for appointment at all three
levels, i.e. as District judges, High Courts
and this court. This was because counsel
practising in the law courts have a direct
link with the people who need their
services; their views about the functioning
of the courts, is a constant dynamic.
Similarly, their views, based on the
experience gained at the Bar, injects the
judicial branch with fresh perspectives;
uniquely positioned as a professional, an
advocate has a tripartite relationship: one
with the public, the second with the court,
and the third, with her or his client. A
counsel, learned in the law, has an
obligation, as an officer of the court, to
advance the cause of his client, in a fair
manner, and assist the court. Being
members of the legal profession,
advocates are also considered thought
leaders. Therefore, the Constitution makers
envisaged that at every rung of the judicial
system, a component of direct appointment
from members of the Bar should be
resorted to. For all these reasons, it is held
that members of the judicial service of any
State cannot claim to be appointed for
vacancies in the cadre of District Judge, in
the quota earmarked for appointment from
amongst eligible Advocates, under Article
233.

12.

Apart
from
the
above
observations, the Hon'ble Supreme Court
while interpreting Article 236(2) of the
Constitution of India, in the Case of
Deepak Aggarwal Vs. Keshav Kaushik
and others, reported in 2013 (5) SCC 277,
was pleased to observed as under:-

"88. 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 as advocate on the date of
application. "

13. In the light of the above, it is clear
that under Article 233 of the Constitution
of India, a Judicial Officer regardless of his
1132 INDIAN LAW REPORTS ALLAHABAD SERIES
or her previous experience, as an Advocate
with 7 years practice, cannot apply and
compete for appointment to any vacancy in
the post of District Judge; his or her chance
to occupy the post would be through
promotion in accordance with the Rules
framed under Article 233 and Proviso to
Article 309 of the Constitution of India.

14. No relief can be given to the
petitioners. The writ petition fails and is,
accordingly, dismissed.

15.

The
interim
order
dated
20.12.2018 stands discharged.
----------
(2022)01ILR A1132
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.10.2021

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Writ-A No. 988 of 2021
Alongwith
Writ-A Nos. 4462 of 2020, 4515 of 2020, 4786
of 2020, 5199 of 2020, 5388 of 2020, 5807 of
2020, 5865 of 2020, 6145 of 2020, 8501 of
2020, 10636 of 2020, 14110 of 2020, 14279 of
2020, 2654 of 2021, 7656 of 2021, 8412 of
2021, 10222 of 2021

Rohit Kumar & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Man Bahadur Singh, H.N. Singh Sr. Advocate

Counsel for the Respondents:
C.S.C., Arun Kumar, Ashok Kumar, Raghvendra
Pratap Singh, Ram Prakash Shukla, Sanjay
Chaturvedi, Sanjay Kumar Srivastava, Satish
Chandra Yadav, Vikram Bahadur Singh, Yatindra

A. Service Law - Constitution of India, 1950Article 226-Challenge to-Government Order
of
Assistant
Teacher
2019-petitioners
appeared in ATRE-2019 to improve their
percentage marks to get their preferred
choice of district-Under the Rules, govering
Assistant Teachers, there is a provision for
securing inter-district transfer-petitioners
had been deprived NOC to participate in the
counselling for appointment and placementGO discriminates against the candidates
employed in other departments -GO to that
extent has exceeded the power, authority
and
jurisdiction
conferred
upon
the
Government under Act, 1972 and the Rules,
1981. Para 5(1) of the Government Order, is
an arbitrary exercise of power having no
nexus with the object or clarification it
seeks to remedy.(Para 1 to 22)

The writ petition is allowed. (E-6)
(Delivered by Hon'ble Suneet Kumar, J.)

1. The batch of petitions involve
similar controversy, therefore, on request of
the learned counsels for the parties, the writ
petitions are being decided by a common
judgment and order.

2. Heard Sri H.N. Singh, learned
Senior Advocate, assisted by Sri Man
Bahadur Singh and Sri Agnihotri Kumar
Tripathi, learned counsels appearing for the
petitioners. In all other matters, learned
counsels for the petitioners have adopted
the arguments advanced by learned Senior
Advocate. Smt. Archana Singh, learned
Addl.
Chief
Standing
Counsel
has
advanced arguments on behalf of State; Sri
Yatindra, Sri Vikram Bahadur Singh, Sri
Arun Kumar and Sri Sanjy Kumar,
Advocates, have put in appearance on
behalf of Uttar Pradesh Board of Basic
Education
and
have
advanced
their
submissions.

3. Facts of writ petition No.-988/2021
is being referred to for the sake of