# Utsav Chaturvedi v. The State of U.P. and others

- **Citation:** (2012) 2 ILRA 653
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-06-25
- **Bench:** Devi Prasad Singh, Dr. Satish Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/utsav-chaturvedi-v-the-state-of-u-p-and-others-42246
- **Pages:** 8

## Headnote

readwith Constitution of India, Article
226, 233, 233 (2)-Petitioner seeking
direction to declare the provision of Rule
13(2)
,
17
(2)
ultra-vires-as
the
petitioner possess more than 7 years
practice prior to appointment of P.C.S.
(J)
M.P.-word
used
'already'
under
Section 233 (2) denotes person must be
a
practicing
Advocate-after
joining
Judicial Service-petitioner ceased to be a
Advocate-even otherwise in view of
Section 40 of Advocates Act-petitioner
ceased to be an Advocate-held-Rules are
not ultra-vires.

Held: Para 20 and 21

The case of Shankar K. Mandal (supra)
does not relate to situation envisage
under Article 233 of the Constitution of
India and considered by the Hon'ble
Supreme
Court(supra).
Recruitment
process
with
regard
to
ordinary
Government service and with regard to
judicial services may be different. So far
as
Higher
Judicial
Services
are
concerned,
it
is
governed
by
the
condition contained in Article 233 of the
Constitution of India. Article 233 has
been interpreted by the Hon'ble Supreme
Court in catena of judgments, out of
which aforesaid two judgments referred
herein above would reveal that on the
cut of date or at the time of recruitment,
the candidate must be the member of
Bar or a practicing advocate. In case he
has requisite experience, but he is not
the
member
of
Bar
or
practicing
advocate then keeping letter and spirit
of Article 233 of the Constitution of
India, he shall not be entitled to appear
in the Higher Judicial Services.

So far as the validity of impugned Rules
are concerned, they do not seem to be
ultra-vires to the Constitution. In case,
the Rules in question are considered in
the light of aforesaid judgment of the
Hon'ble Supreme Court, it appears to be
intra-vires regulating the condition of
recruitment.
Case law discussed:
(1991) 1 Supreme Court Cases 330; AIR 1985
SC 308; (2003) 9 SCC 519

## Text

2 All] Utsav Chaturvedi V. The State of U.P. and others
653

18. In the result, we do not find any
illegality or infirmity in the order. The
appeal
being
devoid
of
merit,
is,
therefore, dismissed.

19. No order is passed as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.06.2012

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE DR. SATISH CHANDRA, J.

Service Bench No. - 450 of 2012

Utsav Chaturvedi

 ...Petitioner
Versus
The State of U.P Thru Principal Secy
Ministry of Law and others ...Respondents

Counsel for the Petitioner:
Dr. L.P Misra
Sri Deepanshu Dass

Counsel for the Respondent:
C.S.C
Sri Manish Kumar

U.P. Higher Judicial Services Rules1975,
readwith Constitution of India, Article
226, 233, 233 (2)-Petitioner seeking
direction to declare the provision of Rule
13(2)
,
17
(2)
ultra-vires-as
the
petitioner possess more than 7 years
practice prior to appointment of P.C.S.
(J)
M.P.-word
used
'already'
under
Section 233 (2) denotes person must be
a
practicing
Advocate-after
joining
Judicial Service-petitioner ceased to be a
Advocate-even otherwise in view of
Section 40 of Advocates Act-petitioner
ceased to be an Advocate-held-Rules are
not ultra-vires.

Held: Para 20 and 21

The case of Shankar K. Mandal (supra)
does not relate to situation envisage
under Article 233 of the Constitution of
India and considered by the Hon'ble
Supreme
Court(supra).
Recruitment
process
with
regard
to
ordinary
Government service and with regard to
judicial services may be different. So far
as
Higher
Judicial
Services
are
concerned,
it
is
governed
by
the
condition contained in Article 233 of the
Constitution of India. Article 233 has
been interpreted by the Hon'ble Supreme
Court in catena of judgments, out of
which aforesaid two judgments referred
herein above would reveal that on the
cut of date or at the time of recruitment,
the candidate must be the member of
Bar or a practicing advocate. In case he
has requisite experience, but he is not
the
member
of
Bar
or
practicing
advocate then keeping letter and spirit
of Article 233 of the Constitution of
India, he shall not be entitled to appear
in the Higher Judicial Services.

So far as the validity of impugned Rules
are concerned, they do not seem to be
ultra-vires to the Constitution. In case,
the Rules in question are considered in
the light of aforesaid judgment of the
Hon'ble Supreme Court, it appears to be
intra-vires regulating the condition of
recruitment.
Case law discussed:
(1991) 1 Supreme Court Cases 330; AIR 1985
SC 308; (2003) 9 SCC 519

(Delivered by Hon'ble Devi Prasad Singh, J.)

1. Heard Sri Sandeep Dixit, learned
counsel appearing for the petitioner as well
as learned Chief Standing Counsel.

Petitioner, who is a member of
provincial Judicial Services of State of
Madhya Pradesh had applied for U.P.
Higher Judicial Services Exam, 2012 in
pursuance to the impugned advertisement as
contained in Annexure No. 1. The instant
writ petition has been preferred challenging
Rule 13(2) and 17(2) of the U.P. Higher
654 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Judicial Service Rules, 1975 (in short, "the
Rules") to declare it illegal, arbitrary and
ultra-vires to the Constitution of India being
hit by Articles 14, 16 and 233(2) of the
Constitution of India.

Further, the petitioner has prayed for a
writ in the nature of certiorari to quash the
impugned advertisement by which the
judicial officers have been deprived to
appear in the examination of U.P. Higher
Judicial Services. An alternative prayer has
also been made not to proceed with the
impugned advertisement.

2. Rules 13(2) and 17(2) of the U.P.
Higher Judicial Services Rules, 1975 are
reproduced as under:-

Rule 13(2)-The candidates for direct
recruitment must produce a certificate of
good character from the District Judge of
the district in which they have been
practicing, and in the case of candidates
normally practicing in the High Court, from
the Registrar of the High Court and also
from two responsible persons of status (not
related to candidates) who are well
acquainted with them in private life and are
unconnected with their University, College
or School.

Rule 17(2)-The application shall be
submitted to the Court by the candidate
through the District Judge within whose
jurisdiction
the
candidate
has
been
practicing, and in the case of members of
the Bar normally practicing in the High
Court, through the Registrar of the High
Court.
The
application
shall
be
accompanied
by
certificate
of
age,
academic
qualifications,
character,
standing as a legal practitioner and such
other documents as may be required to be
furnished.

3. A plain reading of the aforesaid
Rules reveals that, with regard to direct
recruitment, it shall be incumbent upon the
applicant to produce a certificate of good
character from the District Judge of the
district in which they have been practicing,
and in the case of candidates normally
practicing in the High Court, the certificate
is to be obtained from the Registrar of the
High Court. Such application shall be
submitted through the District Judge within
whose jurisdiction the candidate has been
practicing, and in the case of members of
the Bar normally practicing in the High
Court, such application shall be submitted
through the Registrar of the High Court
along with the testimonials.

4. While assailing the impugned
Rules, it has been stated by the learned
counsel for the petitioner that the Rules
framed by the respondents are violative of
Article 233 of the Constitution of India.
Article 233 of the Constitution of India is
reproduced as under:-

Article 233(1)-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.

Article 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 sum and substance of arguments
advanced by the learned counsel for the
petitioner is that under Clause (2) of Article
2 All] Utsav Chaturvedi V. The State of U.P. and others
655
233, a person shall be entitled to appear in
the examination in question, in case he
rendered seven years or more practice at
Bar earlier to joining of Judicial Services.

5. Submission of the learned counsel
for the petitioner is that the petitioner is
Civil Judge (Class-II) and he was selected
in the P.C.S. (J) examination of Madhya
Pradesh and in consequence thereof, he
resumed
duties
on
27.08.2008
and
thereafter he is serving in the Madhya
Pradesh Judicial Services. Since he has
practiced more than seven years before
joining the judicial services of Madhya
Pradesh, he claims to be entitled to appear
in the U.P. Higher Judicial Services
Examination.

6. While interpreting Clause (2) of
Article 233 of the Constitution of India, it
has been stated by the learned counsel for
the petitioner that it is not necessary that the
applicant must be a practicing advocate at
the time of advertisement. Any person
rendered seven years of practice at Bar, till
the last date of eligibility and had joined the
judicial services like the petitioner shall be
entitled to appear in the examination with
consequential benefits.

7. Clause (2) of Article 233 starts with
the word "already" which means the
candidate should not be in service of union
or state. In Law Lexicon by P. Ramanatha
Aiyar, 2009 Edition the word "already" has
been defined as under:-

"Already. Does not mean at some
time previously, but, means at the time
stated and immediately preceding thereto."

Keeping
in
view
the
aforesaid
definition, in case the word "already" is
considered, then it means "immediately
preceding" on the date of advertisement, the
person should not be employee of state or
union service.

8. The next condition emerging from
Article 233 is that the person has been for
not less than seven years an advocate or a
pleader. Constitutional framers has used the
word "has been".

9. Shri Sandeep Dixit, learned counsel
for the petitioner may not be in correct
while making submission that the word "has
been" may include past incidents. However
Hon'ble Supreme Court in the case reported
in AIR 1989 SC 509 Secretary R.T.A.
Bangalore Vs. D.P. Sharma, held that the
expression "has been" denotes transaction
prior to the enactment of the statute in
question or a transaction after coming into
force of the statute, has to be gathered from
the provision, in which the expression "has
been" occurs or from the other provision of
the statute.

Accordingly the expression "has been"
contained in Article 233 is to be looked into
keeping in view the overall reading of
Article 233 including the word "already".
Under clause (2) of Article 233 the
expression has been used in continuous
tense which denotes that the person must
have been a practicing advocate.

10.

Learned
counsel
for
the
respondents has relied upon the case
reported in (1991) 1 Supreme Court Cases
330 - Sushma Suri vs. Government of
National Capital Territory of Delhi and
another. In the case of Sushma Suri (supra),
under the Delhi Higher Judicial Services
Rules, a question was raised that a person
holding office of Law Officers shall be
entitled to appear in the examination of
Higher Judicial Services.
656 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

11. After considering the rival
submission, the Hon'ble Supreme Court
ruled that 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. Their Lordships further held that
whenever a person is appointed as Pleader
or Government Advocate and appears in
Court without surrendering the certificate of
registration to Bar Council he shall be
deemed to be an advocate and be entitled to
appear in the examination.

Relevant portions of the aforesaid
judgment of the Hon'ble Supreme Court are
produced as under:

6. If a person on being enrolled as an
advocate ceases to practice 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 practices before 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.

10. ... 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, 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.

11. ... We think it is in this manner that
the expression used in Article 233(2) of the
Constitution has to be understood and the
rules framed by the Delhi Administration in
this regard have to be read in the light of
the
constitutional
provisions.
The
expression used 'from the Bar' would only
mean from the class or group of advocates
practising in Courts of law. It does not have
any other attribute.

12. The letter and spirit of Sushma
Suri's case (supra) is that immediately after
joining the employment a person shall
surrender the certificate to the Bar Council
concerned, hence shall ceases to be an
advocate. Thus, while interpretating Article
233(2) of the Constitution of India in
Sushma Suri's case (supra), it has been held
by the Hon'ble Supreme Court that a person
who
has
surrendered
certificate
of
registration to the Bar Council and ceases to
practice in the Court shall not be entitled to
appear in the Higher Judicial examination.
The effect of Clause (2) of Article 233 is
that a candidate must be a practicing
advocate, whose certificate should not have
been surrendered to the Bar Council.
Meaning thereby if a person is appointed in
the judicial services and surrender the
certificate of registration ti State Bar
Council then whatever experience he has
got as a member of Bar its benefits cannot
be made available to such person under the
garb of Clause (2) of Article 233 of the
Constitution of India to enable him to
appear in U.P. H.J.S. Exam.
2 All] Utsav Chaturvedi V. The State of U.P. and others
657

The aforesaid proposition of law finds
force from another judgment of Hon'ble
Supreme Court in the case reported in
earlier case AIR 1985 SC 308, Satya
Narain Singh vs. High Court of Judicature
at Allahabad followed by later judgment.

13. In the case of Satya Narain Singh
(supra), their lordships of Hon'ble Supreme
Court interpreted the word "service" as
contained in Article 233 of the Constitution
of India. Service means the "judicial
service" in terms of Article 233(2) of the
Constitution of India. The relevant portions
of the aforesaid judgment of Satya Narain
Singh's case is reproduced as under:-

4. In Chandra Mohan v. State of Uttar
Pradesh (supra) Subba Rao, C.J. after
referring to Articles 233,234, 235, 236 and
237 stated,-

"The gist of the said provisions may be
stated thus: Appointments of persons to be,
and the posting and pro motion of, district
judges in any State shall be made by the
Governor of the State. There are two
sources of recruitment, namely, (i) service
or the Union or of the State and (ii)
members of 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 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."

Subba Rao, CJ. then proceeded to
consider whether the Government could
appoint as district judges persons from
services other than the judicial service.
After pointing out that Art. 233(1) was a
declaration of the general power of the
Governor in the matter of appointment of
district judges and he did not lay down the
qualifications of the candidates to be
appointed or denoted the sources from
which the recruitment had to be made, he
proceeded to state,

"But the sources of recruitment are
indicated in cl. (2) thereof. Under cl. (2 of
Are. 233 two sources are given namely, (i)
persons in the service of the Union or of the
State, and (ii) advocate or pleader."

5. Posing the question whether the
expression "the service of the Union or of
the State" meant any service of the Union or
of the State or whether it meant the judicial
service of the Union or of the State, the
learned Chief Justice emphatically held that
the expression "the service" in Art. 233(2)
could only mean the judicial service. But he
did not mean by the above statement that
persons who are already in the service, on
the recommendation by the High Court can
be
appointed
as
District
Judges,
overlooking the claims of all other Seniors
in the Subordinate Judiciary Contrary to
Art. 14 and Art. 16 of the Constitution.

14. Admittedly, the petitioner is a
judicial officer. He shall be deemed to be in
judicial service and there appears to be no
reason to doubt that because of joining in
the judicial service he ceases to be an
advocate. Nothing has been brought on
record that the petitioner is entitled to retain
the certificate of registration granted by the
Bar Council or entitled to practice law.
658 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

15. Section 23 of the Advocates Act,
1961 provides that only the advocate
alone will be entitled to practice law.
Section 45 of the Advocates Act further
provides that any person who practices in
any court or before any authority or
person not entitled to practice under the
provision of Advocates Act may be
punished with the imprisonment which
may extend to six months.

16. It shall always be obligatory for
the person to surrender the certificate to
the State Bar Council after joining the
services. Otherwise also a person got an
employment shall not be entitled to
practice at Bar. Accordingly, keeping in
view the letter and spirit of Article 233 (2)
of the Constitution person who is not an
advocate or possess right to practice under
the Advocate Act shall not be entitled to
appear in the examination of Higher
Judicial Services. Needless to say that
persons appointed under Article 233 are
different class in itself chosen from bar
within their respective quota. Substantial
major portion of cadre is filled up by
promotees
from
subordinate
judicial
services PCS (J).

17. Learned counsel for the
petitioner vehemently relied upon the case
reported in (2003) 9 SCC 519 - Shankar
K. Mandal and others vs. State of Bihar
and others.

18. The case of Shankar K. Mandal
(supra) relates to the recruitment process
of Government employee. The relevant
paragraph 5 & 6 of the aforesaid
judgment of the Hon'ble Supreme Court
are reproduced as under:-

5.
Pursuant
to
the
directions
contained in the earlier judgment of the
High Court as affirmed by this Court, a
fresh exercise was undertaken. Since the
present appellants were not selected, writ
petitions were filed before the High
Court. In the writ petition which was filed
by 55 persons and disposed of by the
Division Bench the conclusions were
essentially as follows:(1) Some of the writ
petitioners (Writ petitioners Nos. 5, 18,
23, 28, 41 and 53) were over age at the
time of their initial appointment and their
cases were, therefore, wholly covered by
the directions given by the High Court,
and they were not entitled to relaxation of
age;(2) So far as writ petitioners Nos. 6,
26, 30 and 55 are concerned, the stand
was that they had not crossed the age
limit
at
the
time
of
making
the
applications
for
appointment
and,
therefore, were within the age limit at the
time of initial appointment and were,
therefore, entitled to relaxation of age in
terms of the judgment passed by the High
Court earlier and affirmed by this Court.
This plea was turned down on the ground
that what was relevant for consideration
related to the age at the time of initial
appointment and not making of the
application;(3) As regards writ petitioner
No.24, he was under age at the time of
appointment. He was permitted to file a
representation before the Director of
Primary Education and the High Court
ordered that his case would be considered
afresh;(4)In respect of writ petitioners
Nos. 9 and 17, it was noted that they were
refused absorption on the ground that
they had not made any application in
response to advertisement issued pursuant
to the order passed by this Court. Since
no material was placed to substantiate
this stand and no reasons had been
communicated
for
non-absorption,
direction
was
given
to
consider
representations if made by them within
2 All] Utsav Chaturvedi V. The State of U.P. and others
659
one month from the date of judgment. The
said judgment is under challenge in C.A.
No.916/1999. Appellants have taken the
stand that in terms of this Court's
judgment, a person who was not over age
on the date of initial appointment was to
be considered. Though it was conceded
before the High Court that they were over
age at the time of initial appointment,
much would turn as to what is the date of
initial appointment. The High Court had
not considered as to what was the
applicable rule so far as the eligibility
regarding age is concerned. Learned
counsel appearing for the respondentState however submitted that having made
a concession before the High Court that
they were over age on the date of
appointment, it is not open to the
appellants to take a different stand. The
crucial question is whether appellants
were over age on the date of their initial
appointment. It is true that there was
concession before the High Court that
they were over age on the date of initial
appointment. But there was no concession
that they were over age at the time of
making the application. There was no
definite material before the High Court as
to what was the eligibility criteria so far
as age is concerned. No definite material
was placed before the High Court and
also before this Court to give a definite
finding on that aspect. What happens
when a cut off date is fixed for fulfilling
the prescribed qualification relating to
age by a candidate for appointment and
the effect of any non-prescription has
been considered by this Court in several
cases. The principles culled out from the
decisions of this Court (See Ashok Kumar
Sharma and Ors.v. Chander Shekhar and
Anr. (1997 (4) SCC 18, Bhupinderpal
Singh v. State of Punjab (2000 (5) SCC
262 and Jasbir Rani and ors. v. State of
Punjab and Anr. (2002 (1) SCC 124) are
as follows:

(1) The cut off date by reference to
which the eligibility requirement must be
satisfied by the candidate seeking a public
employment is the date appointed by the
relevant service rules;

(2) If there is no cut off date
appointed by the rules then such date
shall be as appointed for the purpose in
the
advertisement
calling
for
applications; and

(3) If there is no such date appointed
then the eligibility criteria shall be
applied by reference to the last date
appointed by which the applications were
to be received by the competent authority.

6. It has, therefore, to be decided by
the authorities as to which of the three
conditions
indicated
above
were
applicable to the facts of the case. In the
absence of definite material, we think it
appropriate to direct the authorities to
take a decision within a period of four
months from today, as to whether the
appellants or one of them was eligible by
applying the tests indicated above. These
directions shall apply to the writ
petitioners who are appellants in the
present appeal and to nobody else. The
other directions given by the High Court
so far as the writ petitioners Nos. 9, 17
and 24 are concerned do not warrant any
interference as there has been no
challenge by the State Government.

19. It has been submitted by the
learned counsel for the petitioner that
since the petitioner fulfilled the requisit
condition of seven years at Bar before the
cut off date before joining of Judicial
660 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Services he shall be entitled for selection
and appointment in U.P. Higher Judicial
Service. The argument advanced by
learned counsel for the petitioner seems to
be misconceived.

20. The case of Shankar K. Mandal
(supra) does not relate to situation envisage
under Article 233 of the Constitution of
India and considered by the Hon'ble
Supreme
Court(supra).
Recruitment
process
with
regard
to
ordinary
Government service and with regard to
judicial services may be different. So far as
Higher Judicial Services are concerned, it
is governed by the condition contained in
Article 233 of the Constitution of India.
Article 233 has been interpreted by the
Hon'ble Supreme Court in catena of
judgments, out of which aforesaid two
judgments referred herein above would
reveal that on the cut of date or at the time
of recruitment, the candidate must be the
member of Bar or a practicing advocate. In
case he has requisite experience, but he is
not the member of Bar or practicing
advocate then keeping letter and spirit of
Article 233 of the Constitution of India, he
shall not be entitled to appear in the Higher
Judicial Services.

21. So far as the validity of impugned
Rules are concerned, they do not seem to
be ultra-vires to the Constitution. In case,
the Rules in question are considered in the
light of aforesaid judgment of the Hon'ble
Supreme Court, it appears to be intra-vires
regulating the condition of recruitment.

22. In view of above, the writ petition
is devoid of merit and the same is hereby
dismissed in limine.
---------

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.05.2012

BEFORE
THE HON'BLE SUDHIR KUMAR SAXENA, J.

U/S 482/378/407 No. - 670 of 2010

Smt. Shiv Kumari

 ...Petitioner
Versus
State of U.P., & another ...Respondents

Counsel for the Petitioner:
Sri Amarjeet Singh Rakhra

Counsel for the Respondents:
G.A.
Sri Indrajeet Shukla

Code of Criminal Procedure-Section 239,
240-discharge
application-on
groundF.I.R. Lodged after 15 years suit for
cancellation of sale deed already pending
since
1991-inspite
of
direction
Magistrate without application of mindwithout going through material placed
by Police-without considering the scope
of Section 239-about discharge before
commencement
of
Trail-outrightly
rejection on ground of at this stage-heldorder suffers from non application of
mind-rejection
order
quashed
with
direction of fresh consideration.

Held: Para 6

From the above, it appears that learned
Magistrate proceeded on the assumption
that he has no power to evaluate the
materials forwarded by police under
Section 173 Cr.P.C. and at that stage,
prayer
for
discharge
cannot
be
entertained. This is in violation of clear
mandate of Sections 239 & 240 Cr.P.C.
which require a finding by the Magistrate
with regard to the charge against the
accused being groundless or that there is
ground for presuming that the accused
has committed offence. This finding was
to be recorded upon considering the
police
report,
the
documents
sent