# Shashi Kant Tiwari v. High Court of Judicature at Allahabad & Ors

- **Citation:** (2024) 4 ILRA 352
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-23
- **Case number:** Writ A No. 12307 of 2019
- **Bench:** Vivek Kumar Birla, Donadi Ramesh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shashi-kant-tiwari-v-high-court-of-judicature-at-allahabad-ors-51814
- **Pages:** 25

## Headnote

Service Law - U.P. Higher Judicial Service
Rules, 1975 - Rule 5(c) - Direct Recruitment
to Higher Judicial Service (HJS) - Eligibility -
Continuous Practice as Advocate - Shashi Kant
Tiwari Vs High Court of Judicature at Allahabad,
Writ A No. 12307 of 2019 - Petitioner challenged
rejection order (08.05.2019) of his candidature
for U.P. HJS Examination 2016, claiming
inclusion in the final select list. Petitioner,
registered as an advocate since 16.11.1998, was
in full-time employment as Law Officer with
Alliance Builders and Contractors Ltd. from
15.01.2009 to 01.02.2010, which interrupted his
continuous practice. Per Article 233(2) of the
Constitution and Rule 5(c), a candidate must
have 7 years of continuous practice as an
advocate immediately preceding the application
cut-off date (18.06.2016). Supreme Court's
rulings in Deepak Aggarwal Vs Keshav Kaushik,
(2013) 5 SCC 277, and Dheeraj Mor Vs High
Court of Delhi, (2020) 7 SCC 401, mandate
continuous practice as an advocate, excluding
periods of full-time employment except for
public prosecutors or government pleaders
acting predominantly as advocates. Petitioner's
employment terms prohibited engaging with
other clients, and his practice from 01.02.2010
to 18.06.2016 amounted to only 6 years, 4
months, and 17 days, falling short of the
required 7 years. Claim of filing vakalatnamas
for other clients during employment not
considered, as it was potentially in violation of
Bar Council of India Rules 43 and 49 and
employment
terms.
A
belated
letter
(19.01.2009) permitting practice with other
clients, raised for the first time, was not relied
upon. Petitioner's higher marks (471) compared
to the last selected candidate (455) irrelevant
due to ineligibility. Resolution of Selection and
Appointment Committee (17.05.2017) upheld,
finding no infirmity. (Paras 5-24)

Writ Petition Dismissed.

List of Cases cited:

## Text

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352 INDIAN LAW REPORTS ALLAHABAD SERIES
to further pull it down by way of minimum
qualification
which
the
UGC
had
prescribed for.

18. No pleading has been raised in the
entire writ petition that the petitioner has
the same standard of learning in B.Sc.
(Biology) as provided and prescribed under
the four years B.Sc. (Agriculture)/ four
years B.Sc.(Hons.). All that is pleaded is
that
since
minimum
qualification
prescribed by UGC is only M.Sc. in the
concerned subject/ allied subject from an
Indian University whether one is B.Sc.
(Agriculture) or otherwise in any other
discipline would be entitled.

19. Writ petition fails and is
accordingly dismissed.
----------
(2024) 4 ILRA 352
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.04.2024

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE DONADI RAMESH, J.

Writ A No. 12307 of 2019

Shashi Kant Tiwari ...Petitioner
Versus
High Court of Judicature at Allahabad &
Ors. ...Respondents

Counsel for the Petitioner:
Sri Sushil Kumar Shukla, Sri Shashi Kant
Shukla

Counsel for the Respondents:
Sri Ashish Mishra

Service Law - U.P. Higher Judicial Service
Rules, 1975 - Rule 5(c) - Direct Recruitment
to Higher Judicial Service (HJS) - Eligibility -
Continuous Practice as Advocate - Shashi Kant
Tiwari Vs High Court of Judicature at Allahabad,
Writ A No. 12307 of 2019 - Petitioner challenged
rejection order (08.05.2019) of his candidature
for U.P. HJS Examination 2016, claiming
inclusion in the final select list. Petitioner,
registered as an advocate since 16.11.1998, was
in full-time employment as Law Officer with
Alliance Builders and Contractors Ltd. from
15.01.2009 to 01.02.2010, which interrupted his
continuous practice. Per Article 233(2) of the
Constitution and Rule 5(c), a candidate must
have 7 years of continuous practice as an
advocate immediately preceding the application
cut-off date (18.06.2016). Supreme Court's
rulings in Deepak Aggarwal Vs Keshav Kaushik,
(2013) 5 SCC 277, and Dheeraj Mor Vs High
Court of Delhi, (2020) 7 SCC 401, mandate
continuous practice as an advocate, excluding
periods of full-time employment except for
public prosecutors or government pleaders
acting predominantly as advocates. Petitioner's
employment terms prohibited engaging with
other clients, and his practice from 01.02.2010
to 18.06.2016 amounted to only 6 years, 4
months, and 17 days, falling short of the
required 7 years. Claim of filing vakalatnamas
for other clients during employment not
considered, as it was potentially in violation of
Bar Council of India Rules 43 and 49 and
employment
terms.
A
belated
letter
(19.01.2009) permitting practice with other
clients, raised for the first time, was not relied
upon. Petitioner's higher marks (471) compared
to the last selected candidate (455) irrelevant
due to ineligibility. Resolution of Selection and
Appointment Committee (17.05.2017) upheld,
finding no infirmity. (Paras 5-24)

Writ Petition Dismissed.

List of Cases cited:

1. Deepak Aggarwal Vs Keshav Kaushik, (2013)
5 SCC 277 (Paras 5, 9, 12, 14, 15, 18)

2. Dheeraj Mor Vs High Court of Delhi, (2020) 7
SCC 401 (Paras 9, 13, 18)

3. Rameshwar Dayal Vs St. of Punj., AIR 1961
SC 816 (Paras 16, 18)

4. Chandra Mohan Vs St. of U.P., AIR 1966 SC
1987 (Paras 13, 16)
4 All. Shashi Kant Tiwari Vs. High Court of Judicature at Allahabad & Ors.
353
5. Sushma Suri Vs Govt. of NCT of Delhi, (1999)
1 SCC 330 (Paras 12, 16)

6. Satish Kumar Sharma Vs Bar Council of
Himachal Pradesh, (2001) 2 SCC 365 (Paras 15,
16)

7. Smt. Ruchi Chaudhary Vs High Court of
Judicature at Allahabad, Writ A No. 46742 of
2015, decided on 01.09.2015 (Paras 14, 15)

8. Shiv Kumar Vs High Court of Judicature at
Allahabad, Writ A No. 25580 of 2018, decided
on 05.04.2019 (Para 15)

9. Kumar Mitakshar Vs St. of U.P., Writ A No.
33829 of 2015, decided on 20.04.2023 (Paras 9,
18)

10. Rajesh Chaubey Vs High Court of Judicature
at Allahabad, 2019 (3) ADJ 60 (Para 17)

11. Smt. Rashmi Sharma Vs St. of U.P., Writ A
No. 59375 of 2014, decided on 12.11.2014
(Para 17)

12. Deep Kumar Vs St. of U.P., Writ A No.
32440 of 2014, decided on 16.06.2014 (Para
15)

13. Haniraj L. Chulani (Dr.) Vs Bar Council of
Maharashtra, (1996) 3 SCC 342 (Para 15)

14. Sudhakar Govindrao Deshpande Vs St. of
Maharashtra, 1986 Lab IC 710 (Bom) (Para 13)

(Delivered by Hon'ble Vivek Kumar Birla,
J.)

1. Heard Sri Shashi Kant Shukla
along with Sri Sushil Kumar Shukla,
learned counsel for the petitioner and Sri
Ashish Mishra, learned counsel appearing
for the respondents-High Court.

2. Present petition has been filed with
the following prayers:-

"I. Issue a writ order of direction
in the nature of certiorari to quash the
impugned order dated 08.05.2019 vide
Memo No. 232/S & A Cell/2-019 passed
by respondent no. 2 Registrar (J) Selection
and Appointment/Seniority High Court of
Judicature at Allahabad.

II. Issue a writ order of direction
in the nature of mandamus commanding
and directing the respondents to declare the
result of the petitioner as finally selected
candidate in Uttar Pradesh Higher Judicial
Service Examination 2016 bearing roll No.
6242.

III. Issue a writ order of direction
in the nature of mandamus commanding
the respondents to issue the appointment
letter to the petitioner as finally selected
candidate in Uttar Pradesh Higher Judicial
Service Examination 2016 bearing roll No.
6242."

3. As stated, the case of the petitioner
is that the petitioner is a practising lawyer
and was registered as an Advocate on
16.11.1998 in Bar Council of Uttar
Pradesh. He was appointed as Law Officer
on 15.1.2009 in a company with the name
and
style
of
Alliance
Builders
and
Contractors Limited, Bareilly (hereinafter
referred as the Company). It is alleged that
he was representing on behalf of the
Company in different courts of law, a copy
of the appointment letter dated 15.1.2009
has been annexed as Annexure-3 to the writ
petition. It is the case of the petitioner that
he was simultaneously also appearing for
private clients and had filed several
Vakalatnamas on behalf of other litigants
as well in various courts of law during the
year 2009-10. He appeared in U.P. Higher
Judicial Services Examination, 2009 and in
the Form the fact regarding his legal
services to the abovenoted Company has
been mentioned. He was qualified the
prelims as well as the written examination
and was called for interview but he was not
354 INDIAN LAW REPORTS ALLAHABAD SERIES
permitted to participate in the interview on
the ground that he is a salary paid
employee. As he intended to appear in
Higher Judicial Services Examination,
therefore, he moved an application dated
1.1.2010 before the Managing Director of
the Company tendering his resignation,
copy whereof has been annexed as
Annexure-14 to the writ petition. The
resignation of the petitioner was accepted
by the Company and relieving order was
passed on 1.2.2010. Subsequently, the
petitioner appeared in U.P. Higher Judicial
Services Examination, 2012 and was again
successful in prelims as well as in the
written examination and was called for
interview, however, as he has obtained only
21 marks out of 100 marks, therefore, his
name did not figure in the select list. He
again appeared in U.P. Higher Judicial
Services Examination, 2014 but could not
qualify the written examination. The
petitioner again applied in April 2016 for
U.P. Higher Judicial Services Examination,
2016 against 72 vacancies so advertised.
He filled up the Form on 6.6.2016
(Annexure-19
to
the
writ
petition),
however, it is claimed that due to
inadvertent mistake some facts were
wrongly mentioned by the petitioner in the
form and the said facts were clarified by
filing affidavit dated 12.6.2016 (Annexure20 to the writ petition). The petitioner again
cleared
prelims
as
well
as
written
examination in the aforesaid examination
and was called for interview on 22.4.2017,
the final result whereof was declared on
18.8.2017, however, name of the petitioner
did not figure in the final select list. It is
asserted that when marks of the candidate
were uploaded on 19.4.2019 the petitioner
came to know that he has obtained total
471 marks while lastly selected candidate
of the general category, namely, Anchal
Lavania has obtained only 455 marks, then
the petitioner was surprised that he had
obtained 16 marks more than last final
selected candidate of the general category,
why his name has not been placed in the
final selected list, therefore, he moved a
representation dated 3.5.2019, the same
was rejected by the impugned order dated
8.5.2019
(Annexure-25
to
the
writ
petition).

4. The rejection order is being
challenged by learned counsel for the
petitioner mainly on the ground that since
16.11.1998, the date on which he was
registered as an Advocate with the Bar
Council of Uttar Pradesh, the petitioner was
a regular practitioner as an Advocate in
various courts of law specifically in Civil
Court, Bareilly. It is submitted that
although the petitioner was engaged for the
Company for one year, however, his nature
of job was to represent the cases of the
company as an Advocate before various
courts of law, therefore, he had always
been working as an Advocate and that the
nature of work performed by the petitioner
for the Company was purely advocacy. It is
submitted that the petitioner appeared in
U.P. Higher Judicial Services Examinations
in 2009, 2012, 2014 and 2016 and always
Bar Association concerned had issued
experience certificate countersigned by the
District Judge to the effect that he was a
regular
practitioner
as
an
Advocate,
therefore, the ground of rejection that he
was engaged in full time employment as
Law Officer of the Company and thus, did
not fulfill the necessary eligibility criteria
of having seven year continuous practice as
on 18.6.2016 i.e. the last date of filling up
the Form, is not sustainable in the eyes of
law.

5. In support of his arguments,
learned counsel for the petitioner has
4 All. Shashi Kant Tiwari Vs. High Court of Judicature at Allahabad & Ors.
355
heavily placed reliance on the judgment of
Hon'ble Apex Court in the case of Deepak
Aggarwal vs. Keshav Kaushik and
others (2013) 5 SCC 277.

6. Learned counsel for the respondent
High Court has vehemently opposed the
petition. A detailed counter affidavit has
been filed by the respondents-High Court
disputing the correctness of the arguments
of learned counsel for the petitioner
specifically highlighting the contents of the
appointment letter, resignation letter, the
Form filled up by the petitioner and the
Affidavit filed by the petitioner. It would
be
appropriate
to
extract
relevant
paragraphs of the Counter Affidavit, which
are as under:-

"4. That as per the admitted case
of the petitioner, the petitioner was under
full time employment of Alliance Builder
and Contractors Limited from 15.01.2009.
The appointment letter which is annexed to
the writ petition (as Annexure 3) contains
the detailed terms and conditions of
employment, one of the conditions of
employment contained at Clause 10 of the
said appointment letter reads as follows:

10. This appointment is on a fulltime basis and you shall devote your fulltime to the duties assigned by the company
and will not engage yourself for any other
person, firm or company in any capacity
during your employment with us.

5. That said appointment letter
and its terms and conditions were duly
accepted by the petitioner vide his
endorsement
dated
15/01/2009.
It
is
pertinent to mention here that the petitioner
was fully aware of the scope of his
employment
and
the
fact
that
in
continuance
of
his
employment
the
petitioner cannot be considered to be an
Advocate with continuing practice for the
purpose of his candidature in the U.P.
Direct Higher Judicial Services exams
which are conducted by the High Court, as
such
the
petitioner
himself
in
his
resignation
letter
dated
01/01/2010
(Annexure
14)
specifically
stated
as
follows:-

"मैं
शसशकान्त
सतवारी
आपकी
प्रसतसित किंपनी एलायिंस सबल्डसथ एिंड क न्टरैक्टसथ
सल. में सदनािंक 15 जनवरी 2009 से ल आसफसर
पद पर पूणथकासलक सनयोजन में सनयुक्त हाँ।

किंपनी द्वारा सदए गए सनयुखक्त पत्र में
वसणथत शतथ के अनुसार चूाँसक मेरा सनयोजन
पूणथकासलक र्ा अतः इस कारण मैं साक्षात्कार
देने से विंसचत रह गया।

चूाँसक मुझे भसवष्य में पुनः उच्चतर
न्यासयक सेवाओिं में सखिसलत होना है सजसके
कारण मैं किंपनी में ल ऑसफसर पद के
पूणथकासलक सनयोजन में कायथ कर पाने में असर्थ
हाँ।

अतः श्रीमान जी से अनुरोि है सक
उपरोक्त परखस्र्सत को देखते हए मेरा त्यागपत्र
स्वीकार कर मुझे मेरे ल ऑसफसर पद के
पूणथकासलक सनयोजन से कायथ मुक्त करने की
कृपा करें।"

As such it is submitted that even
as per the understanding of the petitioner,
the petitioner's employment was full time
and due to his employment he was not
eligible for candidature in the Direct HJS
exams which were being conducted by the
High Court. The petitioner's resignation
was accepted on 01/02/2010 on which date
he was released from service.

6. That it is further submitted that
the present writ petition relates to the
cancellation of candidature of the petitioner
with respect to the advertisement of the
year 2016; as per the admitted case of the
petitioner, the petitioner has after filling of
the online form, submitted an affidavit with
respect to certain inadvertent error in filling
356 INDIAN LAW REPORTS ALLAHABAD SERIES
the form. The contents of the affidavit itself
reveal that the petitioner's stand was that
during his full time employment the
petitioner was ineligible for appearing in
the Direct Higher Judicial Services exam. It
is further submitted that the petitioner has
not provided any evidence or even stated in
his affidavit that he was permitted to
practice or was actually practising during
the period in which he was under
employment. For convenience the relevant
part of the affidavit of the petitioner dated
12.06.2016 (Annexure 20) to the writ
petition, is reproduced herein under:

"4. यह सक शपर्कताथ का वतथमान
समय में कोई सनयोजन नहीिं है।

5. यह सक पूवथ में शपर्कताथ ने एक
प्राइवेट किंपनी- एलाइिंस सबल्डसथ एिंड क न्टरैक्टसथ
सलसमटेड स्टेसडयम रोड बरैली में ल ऑसफसर
के रूप में सदनािंक 15.01.2009 से 01.02.2010
तक कायथ सकया र्ा तर्ा भसवष्य में HJS
परीक्षाओिं में सखिसलत होने के कारण त्यागपत्र
दे सदया र्ा। शपर्कताथ का सनयोजन प्राइवेट र्ा
तर्ा उसे रूपये 9000/- माससक वेतन समलता
र्ा।"

7. That it is further submitted that
no averment or evidence was provided by
the petitioner that the petitioner during his
course of employment was employed to act
and plead in the Court of law as an
advocate; no averment was made or
evidence was provided by the petitioner
that he continued to practice law even after
his appointment. On the other hand it was
categorically stated in the affidavit that the
petitioner
was
in
full
term
private
employment and for the purposes of him
becoming eligible for appearing in Direct
HJS examinations in the future, he has
tendered his resignation on 01.02.2010."
(emphasis supplied)

7. Paragraph 8 of the Counter
Affidavit containing the resolution passed
by
the
Selection
and
Appointment
Committee, while rejecting the candidature
of the petitioner in its meeting dated
17.5.2017, is also quoted as under:-

"8. That the Hon'ble Selection
and
Appointment
Committee
while
rejecting his candidature, in its meeting
held on 17.05.2017 has resolved as under:

3. Shashi Kant Tiwari (Roll No.
6242):

The candidate vide affidavit dated
13/06/2016 had submitted that he was in
employment as Law Officer in a private
firm, Alliance Builders and Contractors
Ltd.
Stadium
Road,
Bareilly
from
15/01/2009 to 01/02/2010. However, he
had also submitted an application dated
13/06/2016 in which he had submitted that
he had inadvertently filled NO in column
number 15 of the application, form which
seeks information regarding employment.

Further,
the
candidate
had
enclosed an appointment letter issued by
the firm Alliance Builders and Contractors
Ltd.
Stadium
Road,
Bareilly
dated
15/01/2009 offering him appointment as
Law Officer at their corporate office
disclosing therein that his remuneration
will be ₹ 9000 per month.

At point number 10 of the said
appointment letter, it is specified that:

"This appointment is on a
full-time basis and you shall devote your
full-time to the duties assigned by the
company and will not engage yourself for
any other person, firm or company in any
capacity during your employment with us."

The candidate had also submitted
relieving order dated 01.02.2010 accepting
his resignation from the service and thereby
relieving him from duties with effect from
01.02.2010. Sri. Tiwari had disclosed the
same facts again through his affidavit dated
03/04/2017. Nothing was found on record
to show that he was otherwise practicing as
4 All. Shashi Kant Tiwari Vs. High Court of Judicature at Allahabad & Ors.
357
a lawyer in this period, though the
candidate had submitted an experierice
certificate issued by the District Judge,
Bareilly showing his practice as on
18/06/2016 as 17 years 7 months and 2
days [since 16.11.1998].

A perusal of the affidavit
submitted by Sri. Shashi Kant Tiwari,
Roll No. 6242 with regard to his
employment revealed that he was in
service
during
the
period
from
15/01/2009 to 01/02/2010, which caused
discontinuity in his practice. As per the
instructions issued for the candidates,
only APO/APP were permitted to fill up
the application form pursuant to the
order passed by the Apex Court in
Deepak Agarwal Vs Keshav Kaushik &
Others (2013) 5 SCC 277 and in Special
Leave Petition No. 17201-17212 of 2007
High Court of Judicature At Allahabad
Vs Sanjay Agarwal and Anr.

The last date of submission of
online application form was 18/06/2016,
therefore
the
length
of
continuous
practice of Shri Shashi Kant Tiwari on
18/06/2016
[from
01/02/2010]
was
found to be 6 years 4 months and 17
days and thus, he did not fulfill the
necessary eligibility criteria of having 7
years
continuous
practice
as
on
18.06.2016.

Therefore in view of the above
deliberation, the Committee resolved to
treat him ineligible for direct recruitment
of
U.P.H.J.S.-2016
rejected
the
provisional candidature of Sri. Shashi
Kant Tiwari, Roll No. 6242.

The aforesaid resolution of the
Hon'ble Committee was approved by the
Hon'ble Full Court and thereafter, the
final result of U.P. Higher Judicial
Service Recruitment, 2016 was declared on
18.06.2017."
(emphasis supplied)

8. It is next submitted that, therefore,
Deepak Aggarwal (supra) is of no help to
the petitioner.

9. Reliance has been placed by
learned counsel for the respondents to a
recent decision of Hon'ble Apex Court in
the case of Dheeraj Mor vs. High Court
of Delhi (2020) 7 SCC 401. Reliance has
also been placed to a judgment of Division
Bench of this Court dated 20.4.2023 passed
in Writ A No. 33829 of 2015 (Kumar
Mitakshar vs. State of U.P. and others),
wherein the decision of Hon'ble Apex
Court passed in Deepak Aggarwal (supra)
as well as Dheeraj Mor (supra) has
extensively been considered and claim of
the similarly placed candidate was rejected.

10. We have considered the rival
submissions and have perused the record.

11. Before proceeding further it
would be appropriate to take note of
relevant provisions of Constitution of India,
definition of 'Advocate' as defined in
Advocates Act, 1961, relevant rules of Bar
Council of India Rules and U.P. Higher
Judicial Service Rules, 1975, which are
quoted as under:-

"Constitution of India

"233(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."

The Advocates Act, 1961

"2. Definitions - (1) In this Act,
unless the context otherwise requires-

(a) "advocate" means an advocate
entered in any roll under the provisions of
this Act;
358 INDIAN LAW REPORTS ALLAHABAD SERIES

49- General power of the Bar
Council of India to make rules- (1) The Bar
Council of India may make rules for
discharging its functions under this Act,
and, in particular, such rules may prescribe-

...

(c) the standards of professional
conduct and etiquette to be observed by
advocates;

......."
The Bar Council of India Rules

"43. An advocate who has been
convicted of an offence mentioned under
section 24A of the Advocates Act or has
been declared insolvent or has taken full
time service or part time service or engages
in business or any avocation inconsistent
with his practising as an advocate or has
incurred any disqualification mentioned in
the Advocates Act or the rules made
thereunder, shall send a declaration to that
effect to the respective State Bar Council in
which the advocate is enrolled, within
ninety days from the date of such
disqualification. If the advocate does not
file the said declaration or fails to show
sufficient cause for not filing such
declaration
provided
therefor,
the
Committee constituted by the State Bar
Council under rule 42 may pass orders
suspending the right of the advocate to
practise.

Provided that it shall be open to
the Committee to condone the delay on an
application being made in this behalf.

Provided further that an advocate
who had after the date of his enrolment and
before the coming into force of this rule,
become
subject
to
any
of
the
disqualifications mentioned in this rule,
shall within a period of ninety days of the
coming into force of this rule send
declaration referred to in this rule to the
respective Bar Council in which the
Advocate is enrolled and on failure to do so
by such advocate all the provisions of this
rule would apply.

49. An advocate shall not be a
full-time salaried employee of any person,
government, firm, corporation or concern,
so long as he continues to practise, and
shall, on taking up any such employment,
intimate the fact to the Bar Council on
whose role his name appears and shall
thereupon cease to practise as an advocate
so
long
as
he
continues
in
such
employment.

RESOLVED and further clarified
that as Supreme Court has struck down the
appearance by Law Officers in Court even
on behalf of their employers the Judgment
will operate in the case of all law officers.
Even if they were allowed to appear on
behalf of their employers all such Law
Officers who are till now appearing on
behalf of their employers shall not be
allowed to appear as advocates. The State
Bar Council should also ensure that those
Law Officers who have been allowed to
practise on behalf of their employers will
cease to practise. It is made clear that those
Law Officers who after joining services
obtained enrolment by reason of the
enabling provision cannot practise even on
behalf their employers.

RESOLVED that the Bar Council
of India is of the view that if the said
officer is a whole time employee drawing
regular salary, he will not be entitled to be
enrolled as an advocate. If the terms of
employment show that he is not in full time
employment he can be enrolled."

The Uttar Pradesh Higher Judicial
Service Rules, 1975

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

(a) by promotion from amongst
the Civil Judges (Senior Division) on the
4 All. Shashi Kant Tiwari Vs. High Court of Judicature at Allahabad & Ors.
359
basis of Principle of merit-cum-seniority
and passing a suitability test.

(b) by 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 who have been, for
not less than seven years, practicing as an
Advocate, as on the last date fixed for the
submission
of
application
forms."
(emphasis supplied)

12. It would be appropriate to
take note of paragraphs 57, 58, 59, 99 and
102 of Deepak Aggarwal (supra) relied on
by learned counsel for the petitioner, which
are quoted as under:-

"57. In Sushma Suri, a threeJudge Bench of this Court considered the
meaning of the expression "advocate"
occurring in Article 233 (2) of the
Constitution and unamended Rule 49 of the
BCI Rules. In paragraph 6 of the Report
(Pg. 335) this Court held as under :

"6. If a person on being enrolled
as an advocate ceases to practise law and
takes up an employment, such a person can
by no stretch of imagination be termed as
an advocate. However, if a person who is
on the rolls of any Bar Council is engaged
either by employment or otherwise of the
Union or the State or any corporate body or
person practises before a court as an
advocate for and on behalf of such
Government, corporation or authority or
person, the question is whether such a
person also answers the description of an
advocate under the Act. That is the precise
question arising for our consideration in
this case."

58. Then in paragraph 8 of the
Report, this Court observed that for the
purposes of the 1961 Act and the BCI
Rules, a law officer (Public Prosecutor or
Government Pleader) would continue to be
an advocate. Not accepting the view of
Delhi High Court in Oma Shanker Sharma
v. Delhi Administration case (C.W.P. No.
1961 of 1987), this Court having regard to
the object of recruitment under Article
233(2) held in paragraph 9:

"9.
.........To
restrict
it
to
advocates who are not engaged in the
manner stated by us earlier in this order is
too narrow a view, for the object of
recruitment is to get persons of necessary
qualification, experience and knowledge of
life. A Government Counsel may be a
Public Prosecutor or Government Advocate
or a Government Pleader. He too gets
experience in handling various types of
cases apart from dealing with the officers
of the Government. Experience gained by
such persons who fall in this description
cannot be stated to be irrelevant nor
detrimental to selection to the posts of the
Higher Judicial Service. The expression
"members of the Bar" in the relevant Rule
would only mean that particular class of
persons who are actually practising in
courts of law as pleaders or advocates. In a
very general sense an advocate is a person
who acts or pleads for another in a court
and if a Public Prosecutor or a Government
Counsel is on the rolls of the Bar Council
and is entitled to practise under the Act, he
answers the description of an advocate."

59. With regard to unamended
Rule 49 of the BCI Rules, this Court held
as under :

"10. Under Rule 49 of the Bar
Council of India Rules, an advocate shall
not be a full-time employee of any person,
Government, firm, corporation or concern
and on taking up such employment, shall
intimate such fact to the Bar Council
concerned and shall cease to practise as
long as he is in such employment.
However, an exception is made in such
360 INDIAN LAW REPORTS ALLAHABAD SERIES
cases of law officers of the Government
and corporate bodies despite his being a
full-time salaried employee if such law
officer is required to act or plead in court
on behalf of others. It is only to those who
fall into other categories of employment
that the bar under Rule 49 would apply. An
advocate employed by the Government or a
body corporate as its law officer even on
terms of payment of salary would not cease
to be an advocate in terms of Rule 49 if the
condition is that such advocate is required
to act or plead in courts on behalf of the
employer. The test, therefore, is not
whether such person is engaged on terms of
salary or by payment of remuneration, but
whether he is engaged to act or plead on its
behalf in a court of law as an advocate. In
that event the terms of engagement will not
matter at all. What is of essence is as to
what such law officer engaged by the
Government does - whether he acts or
pleads in court on behalf of his employer or
otherwise. If he is not acting or pleading on
behalf of his employer, then he ceases to be
an advocate. If the terms of engagement are
such that he does not have to act or plead,
but does other kinds of work, then he
becomes
a
mere
employee
of
the
Government
or
the
body
corporate.
Therefore, the Bar Council of India has
understood the expression "advocate" as
one who is actually practising before courts
which expression would include even those
who are law officers appointed as such by
the Government or body corporate.

99. What we have said above gets
fortified by Rule 43 of the BCI Rules. Rule
43 provides that an advocate, who has
taken a full-time service or part-time
service inconsistent with his practising as
an advocate, shall send a declaration to that
effect to the respective State Bar Council
within time specified therein and any
default in that regard may entail suspension
of the right to practice. In other words, if
full-time service or part-time service taken
by an advocate is consistent with his
practising
as
an
advocate,
no
such
declaration is necessary. The factum of
employment is not material but the key
aspect is whether such employment is
consistent with his practising as an
advocate or, in other words, whether
pursuant to such employment, he continues
to act and/or plead in the courts. If the
answer is yes, then despite employment he
continues to be an advocate. On the other
hand, if the answer is in negative, he ceases
to be an advocate.

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."

13. It would also be relevant to take
note of Dheeraj Mor (supra) as relied on
by learned counsel for the respondent-High
Court, relevant paragraphs whereof are
quoted as under:-

"13. Article 233(2) starts with a
negative stipulation that a person who is
not already in the service of the Union or
the State, shall be eligible only to be
appointed as District Judge if he has been
4 All. Shashi Kant Tiwari Vs. High Court of Judicature at Allahabad & Ors.
361
an advocate or a pleader for not less than 7
years and is recommended by the High
Court for appointment. The expression 'in
the service of the Union or of the State' has
been interpreted by this Court to mean the
judicial service. A person from judicial
service can be appointed as a District
Judge. However, Article 233(2) provides
that a person who is not in the service of
the Union, shall be eligible only if he has
been in practice, as an advocate or a
pleader for 7 years; meaning thereby,
persons
who
are
in
service
are
distinguished category from the incumbent
who can be appointed as District Judge on
7 years' practice as an advocate or a
pleader. Article 233(2) nowhere provides
eligibility of inservice candidates for
consideration
as
a
District
Judge
concerning a post requiring 7 years'
practice as an advocate or a pleader.
Requirement of 7 years' experience for
advocate or pleader is qualified with a rider
that he should not be in the service of the
Union or the State. Article 233 provides
two sources of recruitment, one from
judicial service and the other from
advocates or pleaders. There are two
separate streams provided; one is for
persons in judicial service, and the other is
for those not in judicial service of the
Union or the State and have practiced for
seven years. The expression 'in service of
the Union or the State' has been interpreted
in Chandra Mohan (supra) to mean judicial
service, not any other service of the Union
or the State. Thus, it is clear that the
members of the judicial service alone are
eligible for appointment as against the post
of District Judge as the only mode provided
for the appointment of inservice candidates
is by way of promotion. They can stake
their claim as per rules for promotion or
merit promotion as the case may be. This
Court has excluded the persons from the
Indian Civil Service, the Provincial Judicial
Service, or other Executive Services, before
Independence, recruitment to the post of
District Judge was provided from other
services also. In Chandra Mohan (supra),
this Court held that no person from the
Executive Service can be promoted as
District Judge. There is separation of the
judiciary in terms of Article 50 of the
Constitution of India. It mandates the State
to take steps to separate the judiciary from
the Executive in the public services of the
State. Article 50 is extracted hereunder:

"50. Separation of judiciary from
executive. The State shall take steps to
separate the judiciary from the executive in
the public services of the State."

14. Article 233(2) provides that if
an advocate or a pleader has to be
appointed, he must have completed 7 years
of practice. It is coupled with the condition
in the opening part that the person should
not be in service of the Union or State,
which is the judicial service of the State.
The person in judicial service is not eligible
for being appointed as against the quota
reserved for advocates. Once he has joined
the stream of service, he ceases to be an
advocate. The requirement of 7 years of
minimum experience has to be considered
as the practising advocate as on the cutoff
date, the phrase used is a continuous state
of affair from the past. The context 'has
been in practice' in which it has been used,
it is apparent that the provisions refers to a
person who has been an advocate or
pleader not only on the cutoff date but
continues to be so at the time of
appointment.

17. After having answered the
question about recruitment from the Bar,
the further question considered in Chandra
Mohan (supra) was whether the Governor
could directly appoint persons from service
other than judicial service as District
362 INDIAN LAW REPORTS ALLAHABAD SERIES
Judges in consultation with the High Court.
They belonged to the executive branch of
the Government and performed certain
revenue and ministerial functions. This
Court took note of the fact that in the preIndependence era, there was a demand that
the judiciary should be separated from the
Executive, and that was based upon the
assumption that unless they were separated,
independence of the judiciary at the lower
level would be a mockery. Thus, Article 50
of Directive Principles of State Policy
provides that States to take steps to separate
judiciary from the executive in public
services of the State. There shall be
separate judicial service from the executive
service.
This
Court
considered
the
provisions of Articles 234, 235, 236 and
237 and observed that there are two sources
of recruitment, services of the Union or
State and members of the Bar. This Court
observed thus:

"15. With this background, if the
following provisions of the Constitution are
looked at, the meaning of the debated
expressions therein would be made clear:

We have already extracted Art.
233.

Article 234. Appointments of
persons other than district judges to the
judicial service of a State shall be made by
the Governor of the State in accordance
with rules made by him in that behalf after
consultation with the State Public Service
Commission and with the High Court
exercising jurisdiction in relation to such
State.

Article 235. The control over
district courts and courts subordinate
thereto 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 Judges shall be vested in the High
Court; but nothing in this Article shall be
construed as taking away from any such
person any right of appeal which he may
have
under
the
law
regulating
the
conditions of his service or as authorising
the High Court to deal with him otherwise
than in accordance with the conditions of
his service prescribed under such law.

Article 236. In this Chapter

(a) the expression "district judge"
includes judges of a city civil court,
additional district judge, joint district judge,
assistant district judge, chief judge of a
small
cause
court,
chief
presidency
magistrate, additional chief presidency
magistrate,
sessions
judge,
additional
sessions judge and assistant sessions
judge:

(b)
the
expression
"judicial
service"
means
a
service
consisting
exclusively of persons intended to fill the
post of district judge and other civil judicial
posts inferior to the post of district judge.

Article 237. The Governor may
by public notification direct that the
foregoing provisions of this Chapter and
any rules made thereunder shall with effect
from such date as may be fixed by him in
that behalf apply in relation to any class or
classes of magistrates in the State as they
apply in relation to persons appointed to the
judicial service of the State subject to such
exceptions and modifications as may be
specified in the notification.

The gist of the said provisions
may be stated thus:

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. There are two
sources of recruitment, namely, (i) service
of the Union or of the State, and (ii)
members of the Bar. The said judges from
the
first
source
are
appointed
in
consultation with the High Court and those
from the second source are appointed on
4 All. Shashi Kant Tiwari Vs. High Court of Judicature at Allahabad & Ors.
363
the recommendation of the High Court. But
in the case of appointments of persons to
the judicial service other than as district
judges they will be made by the Governor
of the State in accordance with rules
framed by him in consultation with the
High Court and the Public Service
Commission. But the High Court has
control over all the district courts and
courts subordinate thereto, subject to
certain prescribed limitations."
(emphasis supplied)

As to the question whether
persons from other services can be
appointed as District Judges, the expression
service of Union or State, has been held to
be construed to be judicial service in
Article 233(2) thus:

16. So far there is no dispute. But
the real conflict rests on the question
whether the Governor can appoint as
district judges persons from services other
than the judicial service; that is to say, can
he appoint a person who is in the police,
excise, revenue or such other service as a
district judge? The acceptance of this
position would take us back to the pre
independence days and that too to the
conditions prevailing in the Princely States.
In the Princely States one used to come
across appointments to the judicial service
from police and other departments. This
would also cut across the wellknit scheme
of the Constitution and the principle
underlying it, namely, the judiciary shall be
an independent service. Doubtless if Art.
233(1) stood alone, it may be argued that
the Governor may appoint any person as a
district judge, whether legally qualified or
not, if he belongs to any service under the
State. But Art. 233(l) is nothing more than
a declaration of the general power of the
Governor in the matter of appointment of
district judges. It does not lay down the
qualifications of the candidates to be
appointed or denote the sources from which
the recruitment has to be made. But the
sources of recruitment are indicated in cl.
(2) thereof. Under cl. (2) of Art. 233 two
sources are given, namely, (i) persons in
the service of the Union or of the State, and
(ii) advocate or pleader.