Allahabad High Court: The Bench of Pankaj Mithal and Saumitra Dayal Singh, JJ. dismissed a petition filed against the order which rejected the candidature of the petitioner for the U.P. Higher Judicial Service Examination-2018 on the ground that he was in full-time employment and thus did not have the required experience for the candidature.
The facts of the case were that in the petitioner had enrolled himself as an advocate with the Bar Council of Delhi in 2010. Thereafter he got in full-time employment as Law Officer with the State Bank of India and the Punjab National Bank respectively in 2014. However, he never surrendered his license to practice and it was never suspended despite the information of employment to the Bar Council. During his employment with the SBI, he appeared in courts and provided legal assistance to the senior counsel of the Bank at Allahabad and Lucknow. The contention arose when he appeared for the preliminary examination for the U.P. HJS in 2018 and his name was rejected as indicated due to the fact that he was in ’employment’. He made a representation against this which was rejected as the Selection Committee opined that he was in permanent employment as Deputy Manager (Law) in SBI from 2014 onwards. Accordingly, he was not an advocate of the standing required in Rule 5(c) of the U.P. Higher Judicial Service Rules, 1975. The Counsel for the petitioner, Tarun Verma, submitted that despite his full-time employment he continued to practice law by appearing before the courts thus he was eligible for appointment in the U.P. HJS.
The Court to adjudicate this looked into Article 233(2) of the Constitution which in unequivocal term provides that a person not already in service shall be eligible for appointment as District Judge if he has been in practice as an advocate or pleader for not less than 7 years thus making 7 years of practice a mandate. After the above constitutional provision came the Bar Council of India Rules framed under Section 49 of the Advocates Act, 1961 which completely prohibits an advocate from taking any full-time employment during his continuance of the practice. Further, Rule 5(c) of The U.P. HJS Rules, 1975 stated that the eligibility for direct recruitment to the U.P. HJS is from amongst the advocates of not less than 7 years standing meaning thereby that a minimum of 7 years standing as an Advocate is a sine-qua-non for selection/appointment in U.P. HJS through direct recruitment. The Court thus held that it was elementary for holding the post of DJ/U.P. HJS to have atleast 7 years of actual standing as an advocate and not the theoretic knowledge of the law as in full-time employment. Further, it was stated that Rule 49 of the Bar Council of India Rules created a legal fiction to the effect that a person duly enrolled as an advocate ceases to be one as soon as he takes full-time employment on salary even if continues to occasionally appear in law Court. This legal fiction has to be recognized as real. The petition was thus dismissed. [Shiv Kumar Pankha v. High Court of Allahabad, WRIT – A No. – 25580 of 2018, Order dated 05-04-2019]
