# Subhash Chandra & others v. State of U.P and another

- **Citation:** (2004) 1 ILRA 342
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-03-17
- **Case number:** Civil Misc. Writ Petition No.5018 of 2004
- **Bench:** A.K. Yog, V.N. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/subhash-chandra-others-v-state-of-u-p-and-another-40357
- **Pages:** 30

## Headnote

U.P. Higher Judicial Service Rules, 1975Rr. 5,6,16,17,18- Constitution of India,
Articles 14,16,233 (2)-advertisement for
HJS
Examination-petitioners
being
eligible applied-Admit cards issued for
appearing
in
written
examination-
declared
successful
in
written
examination-called for interview initially
in January 2004-Meanwhile they were
selected and joined UP Judicial Service-
applied for permission through District
Judges,
who
forwarded
to
High
Court/Administrative
Judge-
Initially
accorded provision-Selection committee
not interview on ground of ineligibility,
since they had joined U.P. Judicial
Service-Therefore
ceased
to
be
an
Advocate on date of interview-Held,
there is no logic to exclude a person
selected in Judicial Service and a person
in service other than judicial service does
not suffer such disqualification-Further
no authority other than Full Court is
competent
to
decide
ineligibility
of
candidates- writs allowed.

Held: Paras 43 & 101

A candidate like the petitioners, who
joins 'judicial service' after submitting
application
form
and
permitted
in
written examination, merely carries a
temporary kind of 'handicap/hurdle and
does
not
render
ineligibility
or
'disqualification' in its ordinary sense
and therefore, need not be normally
excluded/debarred
except
for
very
compelling and relevant reasons. There
is nothing on record to show that the
petitioners
as
candidates
of
Higher
Judicial Service Examination shall not be
in a position to surrender their lien
and/or quit the posts held by them in
'judicial service' by resigning if he is
offered 'appointment' in H.J.S. Under
Article 233 (2) of the Constitution.

In
this
case
also,
two
candidates
working as Additional District Judges in
the Jharkhand State, were permitted to
appear in the interview, while the
petitioners were not allowed to appear in
interview, on the ground that, they
joined judicial service. It is clear
http://www.allahabadhighcourt.nic.in
1 All] Subhash Chandra and others V. State of U.P. and another 343
violation of Article 14 & 16 of the
Constitution.
Case law discussed:
(1999) SCC
AIR 1987 AP 230 (FB)
AIR 1958 All. 323
AIR 1989 SC 509
(1981) 1 SCC 166
(1996) 4 SCC 596
(1949) 2 All ER 155 (CA)
AIR 1961 SC 816
AIR 1966 SC 1987
JT 2002 (3) SC 503
1979 Labour & Industrial Cases (NOC) 162
(All)
AIR 1969 All 594 (FB)
AIR 1985 SC 308
AIR 1969 P & H 178 (DB)
AIR 1967 SC 142
AIR 1974 SC 555
AIR 1981 SC 487
AIR 1983 SC 130
AIR 1978 SC 597

## Text

_Characters 0–39,858 of 93,242. This is a partial read: ask again with offset=39858 for what follows._

342 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
25. Accordingly, we issue a writ of
mandamus commanding the respondent
nos. 1,2,& 3 , their officers, employees,
agents, etc. to ensure payment of
compensation of the amount of Rs.
3,74,205.51 P. in lieu of compulsory
acquisition of the land in plot no. 790, in
Mauza
Puresurdas,
Pargana
Jhunsi,
district Allahabad alongwith interest @
10% per annum simple interest within two
months from today.

26. Writ petition stands allowed
with costs which we quantify at Rs.
10,000/- and to be paid to the petitioners
within two month from today.

27. Copy of this judgment shall be
sent to the District Magistrate, Allahabad,
and the S.S.P., Allahabad and the Chief
Secretary, U.P. Government, Lucknow
within four weeks from today.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.03.2004

BEFORE
THE HON'BLE A.K. YOG, J.
THE HON'BLE V.N. SINGH, J.

Civil Misc. Writ Petition No.5018 of 2004

Subhash Chandra & others ...Petitioners
Versus
State of U.P and another ...Respondents

Counsel for the Petitioners:
Sri Ashok Khare
Sri Sharad Chandra Singh

Counsel for the Respondents:
Sri Sudhir Agarwal
S.C.

U.P. Higher Judicial Service Rules, 1975Rr. 5,6,16,17,18- Constitution of India,
Articles 14,16,233 (2)-advertisement for
HJS
Examination-petitioners
being
eligible applied-Admit cards issued for
appearing
in
written
examination-
declared
successful
in
written
examination-called for interview initially
in January 2004-Meanwhile they were
selected and joined UP Judicial Service-
applied for permission through District
Judges,
who
forwarded
to
High
Court/Administrative
Judge-
Initially
accorded provision-Selection committee
not interview on ground of ineligibility,
since they had joined U.P. Judicial
Service-Therefore
ceased
to
be
an
Advocate on date of interview-Held,
there is no logic to exclude a person
selected in Judicial Service and a person
in service other than judicial service does
not suffer such disqualification-Further
no authority other than Full Court is
competent
to
decide
ineligibility
of
candidates- writs allowed.

Held: Paras 43 & 101

A candidate like the petitioners, who
joins 'judicial service' after submitting
application
form
and
permitted
in
written examination, merely carries a
temporary kind of 'handicap/hurdle and
does
not
render
ineligibility
or
'disqualification' in its ordinary sense
and therefore, need not be normally
excluded/debarred
except
for
very
compelling and relevant reasons. There
is nothing on record to show that the
petitioners
as
candidates
of
Higher
Judicial Service Examination shall not be
in a position to surrender their lien
and/or quit the posts held by them in
'judicial service' by resigning if he is
offered 'appointment' in H.J.S. Under
Article 233 (2) of the Constitution.

In
this
case
also,
two
candidates
working as Additional District Judges in
the Jharkhand State, were permitted to
appear in the interview, while the
petitioners were not allowed to appear in
interview, on the ground that, they
joined judicial service. It is clear
http://www.allahabadhighcourt.nic.in
1 All] Subhash Chandra and others V. State of U.P. and another 343
violation of Article 14 & 16 of the
Constitution.
Case law discussed:
(1999) SCC
AIR 1987 AP 230 (FB)
AIR 1958 All. 323
AIR 1989 SC 509
(1981) 1 SCC 166
(1996) 4 SCC 596
(1949) 2 All ER 155 (CA)
AIR 1961 SC 816
AIR 1966 SC 1987
JT 2002 (3) SC 503
1979 Labour & Industrial Cases (NOC) 162
(All)
AIR 1969 All 594 (FB)
AIR 1985 SC 308
AIR 1969 P & H 178 (DB)
AIR 1967 SC 142
AIR 1974 SC 555
AIR 1981 SC 487
AIR 1983 SC 130
AIR 1978 SC 597

(Delivered by Hon'ble A. K. Yog, J.)

Subhash Chandra, Angad Prasad,
Abdul Quaiyam and Narendra Kumar
Singh, four petitioners, have filed the
present writ petition under Article 226,
Constitution
of
India
praying
for
following reliefs:-

(i)
issue a writ, order or direction of a
suitable nature commanding the
respondents to produce a copy of the
decision of the selection committee
holding the petitioners in eligible for
consideration and to quash the same.
(ii) issue a writ, order or direction of a
suitable nature commanding the
respondents to forthwith interview
the petitioners for UP Higher
Judicial Service in pursuance to the
interview letters issued to them
within a period to be specified by
this Hon'ble Court.
(iii) issue a writ, order or direction of a
suitable nature quashing the entire
proceedings of interview and to
direct de novo interview proceedings
to be conducted of all candidates
including the petitioners and only
thereafter to declare the final result.
(iv) writ, order or direction in the nature
of which this Hon'ble Court may
deem fit and proper under the
circumstances of the case.
(v) award cost to the humble petitioner
throughout of the present writ
petition".

FACTS OF THE CASE:-

1. On behalf of High Court of
Judicature
at
Allahabad,
Registrar
General of the Court published an
advertisement in News Paper dated 8th
June, 2000 inviting applications from
eligible persons for appearing in H.J.S.
Examination, 2000, Annexure no.1 to the
writ petition.

2. Petitioners, vide para 5 to 20 of
the writ petition, contend that according
to
the
eligibility
clause
in
the
advertisement, 1.1.2001 is the cut of date
for computing 7 years standing as an
Advocate: the petitioners as Advocate had
more than 7 years standing on 1.1.2001,
being eligible they applied in pursuance to
the advertisement, their application forms
were found in order; admit cards were
issued for appearing in the written
examination (held on 25th and 26th
November, 2000); after three years
written examination result was published
in December, 2003; petitioners were
called for interview initially scheduled on
8th,
12th
and
15th
January,
2004;
petitioners meanwhile selected and joined
U.P. Nyayik Sewa (on 23-03-2001, 26http://www.allahabadhighcourt.nic.in
344 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
03-2001, 23-05-2001 and 25.05.2001 as
disclosed by the respondents); petitioners
applied for permission through concerned
District Judges who forwarded it to High
Court/respective Administrative Judges,
they were initially accorded permission;
petitioners appeared on the original dates
fixed for interview but later intimated of
change of dates; petitioners again
reported on the re-scheduled dates for
interview;
and
that
the
Selection
Committee
did
not
interview
these
candidates on the ground that they were
not eligible since petitioners had joined
U.P. Nyayik Sewa (i.e. they were in
judicial service) and therefore ceased to
be Advocate on the date of interview. The
petitioners, therefore, felt aggrieved.

3. We called for the original record
of the case from the Registry. It shows
that
these
petitioners
submitted
applications for permission to appear in
interview through their concerned District
Judges who forwarded them to the Court.
The
office
report
dated
14.1.2001,
addressed to Deputy Registrar (Misc.),
shows that Subhash Chandra, Abdul
Quaiyam and Narendra Kumar Singh
(three
petitioners)
were
granted
permission
by
their
respective
Administrative Judges. It is also admitted
in para 14 of the Counter affidavit.

4. The record also shows that similar
application of Angad Prasad/petitioner
no.2 was referred by the Registrar
General along with his note dated
14.1.2002 to the Administrative Judge
who in turn referred the matter to the
Hon'ble the Chief Justice for appropriate
orders. The Hon'ble the Chief Justice,
presumably in exercise of powers of
under Chapter III, Rule 4, clause (A) subclause 6 of the Rules, passed order dated
16.1.2004, which reads:-

"Permission cannot be granted in
view of the admitted fact that he has been
working as P.C.S (J) and he cannot be
said to be a pleader or an Advocate at the
time of interview".
(Also quoted in para 16 of the counter
affidavit.)

5. It appears, in view of the
aforequoted order dated 16.1.2004, other
three petitioners were also consequently
not allowed to participate in the interview.

Petitioners, who were not permitted
to appear in the interview in the aforesaid
circumstances, have filed this petition
primarily on the following grounds
quoted below:-

(a) Because rule 5 specifies the source of
recruitment to the said service and
includes direct recruitment of pleaders
and advocates of not less than 7 years
standing on the first day of January of
next following the year in which the
notice
inviting
the
applications
is
published.

(b)............

( c ) Because a perusal of 1975 rule as
also the advertisement issued by the High
Court initiating the selection process
demonstrates that first day of the
succeeding year is the date for computing
eligibility of possessing 7 years length of
service as also the permissible age limit.

(d) Because clearly the date for
adjudging
the
eligibility
has
been
specified both under rules and the
advertisement initiating the recruitment
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1 All] Subhash Chandra and others V. State of U.P. and another 345
process. Alternatively in the absence of
any such specification the last date for
submitting application form would be the
relevant date for consideration.

(e) Because on either of the aforesaid
two dates the petitioners were fully
eligible for appointment and suffer from
no in eligibility.

(f) Because the petitioners can not be
held to be in eligible for appointment on
account of any subsequent facts which
comes into existence subsequent to the
aforesaid dates.

(g).............
(h) Because the petitioners have been
wrongly excluded from the selection
process despite their success in the
written examination.
(i)..............
(j).............

(k) Because even otherwise the decision
to
exclude
the
petitioners
from
consideration in interview is a decision
taken by the selection committee who has
no power in this regard. There does not
exist any decision of the full court of the
High Court holding the petitioners to be
in eligible.
(l).................
(m) Because even in the past selections
whenever there existed doubt with regard
to the candidature of any candidate called
for interview the objection against his
name
was
noted
in
the
selection
proceedings
but
such
candidate
nevertheless interviewed by the selection
committee and the matter referred to the
full court of the High Court for final
decision on the candidature.

(n).................
 (o) Because in a process of selection of
candidates who have qualified the written
examination ought to be interviewed by
the same interview board in the same
proceedings so that the norm for
awarding marks is in no manner affected.
In such view of the matter it is essential in
the interest of justice that the entire
proceeding of interview of the all the
candidates be set aside with the direction
issued of holding de novo interview
proceeding with regard to all candidates
including the petitioners.

Counter affidavit (sworn by Sri P. K.
Goel, Joint Registrar (Inspection), High
Court Allahabad), has been filed on
behalf of the Respondent no.2 only.

6. Para 9 to 13 of the counter
affidavit
are
relevant
wherein
'Advertisement' in question is admitted
and it is stated that 4103 candidates
applied in pursuant thereto; on scrutiny
385 candidates were permitted to appear
in the written examination held on
25th/26th November, 2000, the petitioners
were issued admit cards to appear in the
examination, result was published in
December, 2003, and petitioners were
issued interview letters. It is pleaded by
the
answering
respondents
that
the
petitioners had, in the meantime, applied
for recruitment and got appointed to U. P.
Nyayik Sewa on the basis of the result
declared by the U.P. Public Service
Commission in the year 2001 and the
petitioners being in U. P. Nyayik Sewa
sought for permission for appearing in
interview.

7. In the rejoinder affidavit sworn by
Narendra Kumar Singh (one of the
petitioners) there is nothing in particular
except that in para 5 of the rejoinder
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346 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
affidavit, while replying to para 14 to 17
of the counter affidavit, it is stated that the
order of Hon'ble the Chief Justice dated
16.1.2004 was on the basis of the
application of one of the petitioners
(Angad Prasad), that the said order of the
Hon'ble the Chief Justice was not an order
of general nature applicable to all the
petitioners and the question whether the
petitioners were eligible or not ought to
have been adjudged with reference to
Article 233 of the Constitution and the
Rules, and whether a person is 'eligible' or
'in eligible' could be decided only by 'Full
Court' of the High Court and not by the
Hon'ble the Chief Justice or the Selection
Committee.

8. From original record of the case,
it transpires that two candidates (Sunil
Kumar Panwar/Roll no.1225 and Sri
Pradeep Kumar/Roll no. 2088), who were
also eligible at the time of submitting
their applications as per advertisement but
subsequently joined Judicial services and
working as 'Judicial Officer' in the State
of Jharkhand and Bihar and given
permission by their respective High
Courts for appearing in interview, were
also not accorded permission to appear in
the interview in question.

9. Apart from the above, in para 29
of the petition, it is stated that two
candidates were interviewed by the
Selection Committee who were already in
the judicial service and posted as
Additional District Judge in other State.

10. Respondents, vide para 29 of the
counter affidavit, in reply admit that two
persons, already in Judicial Service in the
State of Jharkhand and holding the post of
Additional District Judges were though
interviewed by the Selection Committee
but their candidature was later cancelled
by the Section Committee on the ground
of being ineligible.

11. On behalf of the petitioners, it is
argued that plain reading of Article 233(2)
read with Rule 5 and Rule 18 of the Rules
along with the advertisement/Annexure 1
to the writ petition, it is amply clear that
in case of direct appointment under U.P.
Higher
Judicial
Services,
eligibility
condition of 7 years practise as an
'advocate or pleader' is to be seen and
satisfied at the time of submitting
application. In other words, an applicant
need not continue as 'advocate' or 'pleader'
through out the process of selection which
include 'recommendation by the High
Court' and to be actually appointed by the
Governor of the State.

12. In the backdrop of the facts of
this case the question to be answered is
'Whether a person (admittedly eligible at
the time of submitting application as per
advertisement)
who
later
during
'Selection'/'Recruitment Process' of H.J.S
Exam joins 'judicial service', and ceases to
be 'Advocate', will be entitled to be
considered for rest of selection process
and recommended by the concerned High
Court for appointment under Article
233(2), Constitution of India and the
relevant Rules.

13. Answer to the above question
depends upon interpretation of Article
233, Constitution of India and certain
provisions
of
U.P.
Higher
Judicial
Services Rules 1975 (as amended up to
date); hereinafter called 'the Constitution'
and 'the Rules' respectively.

14. Before dealing with the
respective contentions of the parties, it
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1 All] Subhash Chandra and others V. State of U.P. and another 347
will be appropriate to reproduce relevant
statutory provisions.

RELEVANT PROVISIONS:
CONSTITUTION
OF
INDIACHAPTER
VI
-SUBORDINATE
COURTS

Article "233. 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.

236. Interpretation- In this chapter-
(a) the
expression
'district
judge'
includes judge 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.

THE UTTAR PRADESH HIGHER
JUDICIAL SERVICE RULES, 1975
(framed
under
rules
regulating
recruitment and appointment to the U.P.
Higher Judicial Service framed by the
Governor in exercise of powers conferred
by the proviso to Article 309, read with
Article 233 of the Constitution):

PART II --Cadre

5. Sources of recruitment.-- The
recruitment to the Service shall be made--
(a) by direct recruitment of pleaders and
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;
(b) by promotion of confirmed members
of the Uttar Pradesh Nyayik Sewa
(hereinafter referred to as the Nyayik
Sewa), who have put in not less than
seven years' service to be computed on the
first day of January next following the
year
in
which
the
notice
inviting
applications is published :

Provided that for so long as suitable
officers are available from out of the
dying cadre of the Judicial Magistrates,
confirmed officers who have put in not
less than seven years' service to be
computed as aforesaid shall be eligible
for appointment as Additional Sessions
Judges in the service.

Explanation.-- When a person has
been both a pleader and an advocate his
total standing in both the capacities shall
be taken into account in computing the
period of seven years under clause (a).

6. Quota.--Subject to the provisions of
Rule 8, the quota for various sources of
recruitment shall be --
(i) direct recruitment from the Bar 15%

(ii) Uttar Pradesh Nyayik Sewa 70% of
the vacancies
http://www.allahabadhighcourt.nic.in
348 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
(iii) Uttar Pradesh Judicial Officers
15%
Service(Judicial Magistrates).

Provided that where the number of
vacancies to be filled in by any of these
sources in accordance with the quota is in
fraction, less than half shall be ignored
and the fraction of half or more shall
ordinarily be counted as one:-

Provided further than when the
strength in the cadre of the Judicial
Magistrates gradually gets, depleted or is
completely
exhausted
and
suitable
candidates are not available in requisite
numbers
or
no
candidate
remains
available at all, the shortfall in the
number of vacancies required to be filled
from amongst Judicial Magistrates and in
the long run all the vacancies, shall be
filled by promotion from amongst the
members of the Nyayik Sewa and their
quota shall, in due course, become 85 per
cent.

16. Selection Committee.- (1) The Chief
Justice
shall,
for
each
recruitment
Service, appoint a Selection Committee
consisting of such number of Judges of
the Court, not less than three, as he may
decide.
(2) No proceeding of the Selection
Committee shall be invalid merely by
reason of a vacancy occurring in it, or by
a member or members being not present
at one or more of its meetings, provided
that a majority of the members of the
committee have been present at each
meeting.

17.
Direct
recruitment.
---(1)
Applications for direct recruitment to the
service shall be invited by the Court by
publishing a notice to that effect in the
leading newspapers of the State and shall
be made in the form prescribed from time
to time to be obtained from the Registrar
of the Court on payment of the prescribed
fee.
(2) The application shall be submitted to
the Court by the candidate through the
District Judge within whose jurisdiction
the candidate has been practising, and in
the case of members of the Bar normally
practising in High Court, through the
Registrar of the High Court. The
application shall be accompanied by
certificates
of
age,
academic
qualifications, character, standing as a
legal
practitioner
and
such
other
documents as may be required to be
furnished.
(3) The District Judge shall forward to
the court all applications received by him
along with his own estimate of each
candidate's character and fitness of
appointment to the service.

18. Procedure of selection.----(1) The
Selection Committee referred to in Rule
16 shall scrutinize the applications
received and may thereafter hold such
examination,
as
it

may
consider
necessary for judging the suitability of the
candidates. The Committee may call for
interview such of the applicants who in its
opinion have qualified for interview after
scrutiny and examination.
(2). In assessing the merits of a candidate
the Selection Committee shall have due
regard
to
his
professional
ability,
character, personality and health.
(3) The Selection Committee shall make
a preliminary selection and submit the
record of all candidates to the Chief
Justice and recommend the names of the
candidates in order of merit who, in its
opinion, are suitable for appointment to
the service.
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1 All] Subhash Chandra and others V. State of U.P. and another 349
(4) The Court shall examine the
recommendations
of
the
Selection
Committee and, having regard to the
number of direct recruits to be taken,
prepare a list of selected candidates in
order of merit and forward the same to
the Governor.

Relevant
extract
of
the
Advertisement dated 8th June 2000
published under Rule 17(3) of the Rules,
1975 (Annexure 1 to the writ petition) is
reproduced:

"THE RECRUITMENT TO THE
UTTAR PRADESH HIGHER
JUDICIAL SERVICE"

Applications for direct recruitment to
38 vacancies in the Uttar Pradesh Higher
Judicial Service ...........are invited by the
undersigned. Out of this 19 vacancies are
for general candidates, 8 vacancies are
reserved for Scheduled Caste candidate, 1
vacancy for Scheduled Tribe candidate
and 10 vacancies for Other Backward
Classes. The recruitment will consist of a
written examination followed by an
interview.

Eligibility of candidate: 1. The applicant
must be a citizen of India.
2.
The applicant must be an advocate of
not less than 7 years standing on
1.1.2001.
3.
The applicant must have attained the
age of 35 years and must not have
attained the age of 42 years on the 1st day
of January 2001 in other words, must
have been born on or after 1.1.1959 and
not later than 1.1.1966.
.........................
Last date for submission of duly
completed form before the concerned
District Judge or the Registrar/Registrar
General, High Court, Allahabad is
16.8.2000 by 5. P.M.
The manner in which the application
shall be submitted and other details are
contained
in
"Instructions
to
the
Candidates" which will be sent alongwith
the application form. "

Clause(2)
of
the
aforequoted
advertisement is relevant for the present
case which clearly spells out 'cut of date'
of an applicant being 'advocate 9 of not
less than 7 years standing ) on 1.1.2001.

BROCHURE
&
APPLICATION
FORM:

Brochure
containing-'application
form' required to be filled for direct
recruitment to the U.P. Higher Judicial
through H.J.S, Exam, 2000 (bearing
Serial no.6700) is also placed on record
by the respondents for perusal of the
court. Relevant columns and the
declaration (to be filled up and submitted
by a candidate) are reproduced --

11. Whether your were a candidate
for a post in the Higher Judicial Service in
the past ? If so, state the year and the fact
whether you were called for interview:

16. If you have been employed at
any time? Give particular below:
Name
of
the
post or nature
of employment
Name
of
employer
Date of Joining
Date
of
termination
Reason
for
termination
Salary
Proof furnished
(Enclosure no.)

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350 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
If you have practiced as an Advocate,
give particulars below:

(i) (a)
Date
of
enrolment
as
an
Advocate
(b)
Are you enrolled with Bar Council?
If so, of which State. Give the
Enrolment number.
(c)
Name of Advocate with whom you
received training.
(d)
Did you work as a Junior to any
Advocate? If so, with whom and for
what period.
(ii)
Period during which you practised
regularly and continuously and the
Courts and Districts in which you
practised.
(iii) Did you pay any Income Tax on
your professional Income?
 If so, the amount on which Income
Tax was paid in each of the last 3
years
(iv) Whether any proceeding was ever
taken against you for Professional
Misconduct or Contempt of court?
If so, give particulars with result
and also enclose certified copies of
the judgment/order passed in the
proceedings by the State Bar
Council/the Bar Council of India/
the High Court and the Supreme
Court of India, if any.
(v) Did you ever figured as an accused
or a complainant in any criminal
case ? If so, give particular with
result and also enclose certified
copies of the judgment/order of the
trial court, or of the appellate
Court, or of Revisional Court if any.

15. In the Brochure also there is
nothing to show that candidate is required
to disclose/declare that he continues or
that he shall continue to be Advocate
throughout process of selection. From
underlined expressions in column 17
quoted above it is clear that information
sought in respect of the applicant is the
period during which he had already
practiced as 'Advocate' - continuously
and on regular basis in Court on or before
1.1.2001.
REASONS AND DISCUSSION

16. Rule 5(a) of the Rule provides
that a 'pleaders' or 'advocates' of not less
than seven years standing on the fist day
of January next following the year in
which the notice/ advertisement inviting
applications is published, shall be eligible
for 'direct recruitment' to the service, viz.
'U.P. Higher Judicial Service'.

17. Rule 17(2) of the Rules provides
that the application shall be submitted to
the Court by the candidate through the
District Judge within whose jurisdiction
the candidate has been practising, and in
the case of 'Advocate' practising in High
Court,
through
the
Registrar
General/Registrar of the High Court. This
rule require that the application shall be
accompanied by certificates of age,
academic
qualifications,
character,
standing as a legal practitioner and such
other documents as may be required to be
furnished.

18. This Rule shows that position, as
existed on the date of submitting
application is required to be disclosed.

19. Rule 18 of the Rules, lays down
procedure for selection makes it clear that
Selection Committee, constituted by the
Chief Justice under Rule 16(i) of the
Rules, shall on receiving applications,
scrutinies them and thereafter it may hold
such examination, as it may consider
necessary for judging the suitability of the
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1 All] Subhash Chandra and others V. State of U.P. and another 351
candidates and the Committee may also
call for interview such of the candidates
who are, after scrutiny and examination,
found suitable for interview.

20. There is no other provision of
scrutiny of 'eligibility' of candidate except
the scrutiny before written examination.
In practice also, as informed by the
learned counsel for the respondent, there
is no second scrutiny.

21. We fail to find in the brochure
containing Application form, any column
requiring a candidate to declare or
disclose that he shall continue to be a
practising
advocate
till
actual
appointment, if selected. Nor do we found
any such condition mentioned in the
advertisement or Article 233(2) or the
Rules.

22. Learned counsel for the
respondents as well as the official of the
Registry present in Court disclosed that
no such declaration is taken from
concerned candidates at any stage nor
scrutiny of any kind done to ascertain that
candidate continued to be 'Advocate' after
1.1.2001 and during entire selection
process including interview.

23. This naturally raises question-as
to how the concerned authorities involved
with 'selection process' in question
otherwise identify that a candidate, who
was eligible while submitting application
form; has not entailed 'ineligibility' by
ceasing to be an advocate after 1.1.2001.
This tends to bring in element of
'unfairness'. Respondents fairly conceded
that there was no methodology or mode to
identify such candidates and permit those
candidates only who continue to be
Advocate 'during selection process'.

24. On the other hand it is also
admitted to the respondents that the fact
that the petitioners (and some other
candidates), joined 'judicial service' in
U.P or other States (like Uttaranchal,
Jharkhand and Bihar) came to light only
because they had applied for permission
from concerned High Court in the context
of their service condition and not as a part
of
'
selection
process'
of
Direct
Recruitment. It is clear that these
candidates did not disclose the fact of
their joining 'judicial service' under the
Rules 1975 or under the Advertisement or
the application form in question not it was
otherwise required under the 'selection
process'. It is interesting to note that in
the case of other candidates, who may
have otherwise ceased to practise as
Advocate after submitting application
form and may be sitting idle, or opted to
indulge in some other vocation, trade,
etc.,
or
failed
in
judicial
service
examination (in which the petitioners
were successful and proved their merit)
are not screened/eliminated and permitted
to participate in the process of selection.
Apparently, there is no rationale or logic
in the said approach.

25. Under Rule 5(a) and the
Advertisement provide 'cut of date' which
alone is relevant to ascertain eligibility of
being an 'Advocate with not less than 7
years practice'. 'Origin' or the 'source' of a
candidate being 'Advocate', is referable to
the 'cut of date' and this is to be seen at
the time when he applies in response to
the advertisement.

26. The stand taken by the
petitioners is that a candidate need not
continue to be 'Advocate' throughout
'process of 'selection'; no such statutory
requirement can be culled out from the
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352 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
language used either in Article 233(2) of
the Constitution or the Rules 1975 or the
Advertisement issued under said rules or
the application form supplied by the High
Court. According to him subsequent
change
in
candidates
position
is
immaterial. In this context reference is to
the case of Gopal Krushna Rath Vs M.
A. A. Baig (Dead) by Lrs and others-
(1999) 1 Supreme Court Cases (para 6
& 7) held that subsequent change in
eligibility qualification will not adversely
effect a candidate who was eligible when
he had applied. For ready reference para
6 and 7 are quoted below:-

"6. When the selection process has
actually commenced and the last date for
inviting
applications
is
over,
any
subsequent change in the requirements
regarding qualifications by the University
Grants Commission will not affect the
process of selection which has already
commenced. Otherwise it would involve
issuing a fresh advertisement with the new
qualifications. In the case of P.
Mahendran v. State of Karnataka -(1990)
1 SCC 411-this Court has observed: SCC
p.416 para 5).
"5. It is well-settled rule of construction
that every statute or statutory rule is
prospective unless it is expressly or by
necessary implication made to have
retrospective effect."
The Court further observed that :
" Since the amending Rules were not
retrospective, it could not adversely affect
the right of those candidates who were
qualified for selection and appointment
on the date they applied for the post,
moreover as the process of selection had
already commenced when the amending
Rules came into force, the amended Rules
could not affect the existing rights of
those
candidates
who
were
being
considered for selection as they possessed
the requisite qualifications prescribed by
the Rules before its amendment."

7. In the present case, therefore, the
appellant
possessed
the
necessary
qualifications as advertised on the last
date of receiving applications. These
qualifications were in accordance with
the Rules/guidelines then in force. There
is also no doubt that the appellant
obtained higher marks than the original
Respondent 1 at the selection. There is no
challenge to the process of selection nor
is there any allegation of mala fides in the
process of selection."

27. Learned counsel for the
respondent,
Sri
Sudhir
Agarwal,
Additional Advocate General, on the
other hand, argued- (i) Article 233
provides for two sources of recruitment to
the post of District Judge; one by
'promotion' of those who are already in
judicial service and the other by 'direct
recruitment' from the Bar who have
minimum of seven years practise as
advocate/pleader; and

(ii)
Article
233(2)
of
the
Constitution, requires that a person, who
has applied for direct recruitment in U.P.
Higher Judicial Services, should continue
to be, an Advocate throughout selection
process of Direct-recruitment.

In support of his contention he has
referred to the words "from the Bar" in
Rule 6(i) of the Rules.

28. It is argued that the words 'from
the Bar' indicate that 'status' of being a
member of the Bar should continue
through out the 'process of selection' and
if the candidate ceases to be 'Advocate' at
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1 All] Subhash Chandra and others V. State of U.P. and another 353
any point of time during process of
selection, he will become ineligible and
consequently exposed to rejection of his
candidature.

29. Sri Sudhir Agarwal, learned
counsel for the Respondent, submits that
expression 'recruitment' and 'appointment'
are synonymous and the two, in given
context, may of same connotation. He
argued that the word 'appointed' appearing
in Article 233, Constitution of India
includes both 'Appointment' and process
of 'recruitment'. It is also argued that
expression 'has been for not less than
seven years an advocate' is to be
interpreted and read as-'an advocate', who
continues to be as such through out
'selection
process'
including
recommendation by the High Court.

30. Respondents endeavoured to
derive help from the Full Bench decision
of
Andhra
Pradesh
High
Court;
reported in AIR 1987 Andhra Pradesh
230(Full Bench)-- K. Naga Raja and
others
Vs.
The
Superintending
Engineer, Irrigation Department and
another. In the case K. Naga Raja
(supra) Supreme Court considered the
meaning of the expression 'matters
relating
to
the
appointment'
which
includes process of selection and of
appointment. In the case in hand, no such
expression is used in the relevant Rules,
1975 or Article 233(2), Constitution of
India. On the other hand, advertisement in
question and the Rules 5 and 17 of the
Rules, clearly indicate that there is no
mention that a candidate for direct
recruitment
should
continue
to
be
'practising advocate' after submitting
application.

Decision in the case of K. Naga Raja
(supra) is, therefore, distinguishable and
out of context.

Answer of the question in hand
depends upon the interpretation of Article
233(2) of the Constitution read with
Rules, 1975.

31. Learned counsel for the
respondents pointed out that words "has
been" used in Article 233(2), Constitution
of India supports his contention-namely
candidate should, throughout selection
process, continue to be Advocate. It is
argued that the eligibility feature of
candidate
being
'Advocate'
(which
admittedly
existed
at
the
time
of
submitting application in the present case)
ought to continue through out the process
of selection. We are unable to agree with
this preposition.

Expression "has been" is present
perfect tense. This shows that identify of
'source' is not referable to selection
process. Candidates' 'eligibility' of being
an 'Advocate' of not less than 7 years'
practice is required and referable to 'cut of
date'
mentioned
in
the
Rules/Advertisement and it is sufficient,
as the statutory provision exist on date,
that such condition is 'fait accompli' on
'cut of date' and not beyond.

32. In the case of Mubarak
Mazdoor Vs. K.K. Banerjee-AIR 1958
All
323
(Pr.4)-,
Division
Bench
interpreted the expression "A person who
has been a judge' and explained that the
said phrase used in S.86 (3), Rep. Of
People Act means a person who has, at
some time, held office as Judge but it
does not necessarily mean that the person
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354 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
must be holding office as a Judge at the
time of his appointment.

33. In the case of the Secretary,
Regional
Transport
Authority,
Bangalore and another Vs. D. P.
Sharma
and another
--AIR 1989
Supreme Court 509 (para 15) court
observed:- "........In our opinion, whether
the expression 'has been' occurring in a
provision of a statute denotes transaction
prior to the enactment of the statute in
question or a transaction after the coming
into force of the statute will depend upon
the intention of the Legislature to be
gathered from the provision in which the
said expression occurs or from the other
provisions of the statute........."

Earlier Rule 5 of the Uttar Pradesh
Higher Judicial Service Rules, 1953,
quoted below ready reference read:

"5.
Sources
of
recruitment.-
(1)
Recruitment to the service shall be made
to the posts of Civil and Sessions Judges-
(i) by promotion from the members
of the Uttar Pradesh Civil Service
(judicial Branch);
(ii) by
direct
recruitment
after
consultation with the court.

(2) Persons
eligible
for
direct
recruitment under sub-clause (ii) of
clause (1) of this rule shall be-

(a) Barristers, Advocates, Vakils or
Pleaders of more than 7 years' standing;

(b)......."

'Ex ANIMO, i.e. intentional, change
in expression of present existing Rule 5 of
the Rules, 1975 is clear and apparent

34. Rule 5 (2)(a) of Rules, 1953
required that Advocate, Pleader etc.
should be of more than 7 years' standing.
From the expression used therein, it could
be probably possible to argue that for
direct
recruitment,
Advocate
must
continue to be as such. Aforesaid Rules
1953 have been replaced by Rules, 1975
which brought in distinct and clear change
in the expression.

35. A plain reading of the above
expression in Rule 5 of the Rules, 1975,
means that a candidate should be an
'Advocate' having seven years standing at
to his credit on or before the 'cut of date'
prescribed in the said Rule 5 itself. The
above expression in Rule 5 of the Rules
1975 by no stretch can be read to mean
that candidate ought to continue to be
Advocate
through
out
process
of
selection.

Change in status after 'cut of date' is
also not material under Article 233(2), as
it stands today.

36. To have better appreciation of
the point in hand, it will be useful to
examine it with the help of illustration.
For this purpose-one may pose following
two questions-