Hon'ble Manoj Misra, J.
The petitioners, who had responded to the advertisement issued by the High Court for making appointment by direct recruitment to the Uttar Pradesh Higher Judicial Services and had appeared at the preliminary examination held in 2014, have filed this petition for quashing the corrigendum dated 26 June 2014 published by the High Court as well as the list of candidates previously declared successful as now ineligible due to short practice on the date of application in terms of the corrigendum.
The minimum essential qualifications as prescribed in the advertisement are as follows :
"2.MINIMUM ESSENTIAL QUALIFICATIONS A candidate must be an Advocate of not less than seven years standing as on 01st day of January, 2015. The applicants must fulfil the essential requirements of the post and other conditions stipulated in the Uttar Pradesh Higher Judicial Service Rules, 1975.
Note:Prosecuting Officers/Assistant Prosecuting Officers are treated to be an Advocate and eligible as per the Judgement of Hon'ble Supreme Court in Civil Appeal No.561 of 2013-Deepak Agarwal Vs. Keshav Kaushik & Others."
The petitioners submitted their applications which were required to be filled online from 19 May 2014 to 18 June 2014. As the petitioners stated that they were Advocates who would have not less than seven years standing as on 1 January 2015, they were issued admit-cards and they appeared at the preliminary examination held on 20 July 2014. Their names were included in the list of successful candidates declared on 24 July 2014.
A corrigendum dated 26 June 2014 had, however, been issued by the High Court which is as follows :
"In the paragraph no.2 (Minimum Essential Qualifications) of the "Instructions" in place of words "....of not less than 7 years standing as on 01.01.2015..." the words "....of not less than 7 years standing as on the date of application ......" shall be read in view of the law declared in High Court of Judicature, Allahabad & Etc. Vs. Sanjay Agarwal & Anr. Etc. and Deepak Agarwal Vs. Keshav Kaushik & Ors. by the Hon'ble Supreme Court."
In view of the aforesaid corrigendum, a list of candidates who had previously been declared successful but found to be ineligible due to short-practice as on the date of application was declared on 21 October 2014. The names of the two petitioners are included in the list as they are not Advocates of not less than seven years standing as on the date of application.
Learned counsel for the petitioners has submitted that it was not open to the High Court to make any change in the eligibility criteria after the last date of submission of the application as that would be violative of Articles 14 and 16 of the Constitution. In support of his contention, learned counsel for the petitioners has placed reliance upon the judgment rendered by the Supreme Court in Tej Prakash Pathak & Ors. Vs. Rajasthan High Court & Ors.1 and C. Channabasavaih & Ors. Vs. State of Mysore & Ors.2. It is also his contention that once the petitioners had appeared at the preliminary examination and had been declared successful on 24 July 2014, it was not open to the High Court to subsequently declare the petitioners ineligible in view of the revised eligibility criteria contained in the corrigendum dated 26 June 2014. In this connection, learned counsel for the petitioners submitted that though the impugned corrigendum has been issued in view of the law declared by the High Court in Sanjay Agarwal etc. etc. Vs. State of U.P. & Anr.3 and the decision of the Supreme Court in Deepak Agarwal Vs. Keshav Kaushik & Ors.4, but the Supreme Court in Deepak Agarwal (supra) has not held that the candidate must be an Advocate of not less than seven years standing as on the date of application. It is his contention that the advertisement issued by the High Court was in accordance with the provisions of Rule 5(c) of the U.P. Higher Judicial Service Rules, 19755 which provide that the recruitment to the service shall be made by direct recruitment from amongst the Advocates of not less than seven years standing on the first day of January next following the year in which the notice inviting the application is published.
Sri Ravi Kant, learned Senior Counsel appearing for the High Court assisted by Sri Manish Goyal has, however, submitted that the Division Bench of this Court in Sanjay Agarwal (supra) has declared Rule 5(c) of the Rules to the extent it provides "on the first day of January next following the year in which the notice inviting application is published" as ultra vires Article 233(2) of the Constitution and, accordingly, struck down this portion of the Rule. He has further pointed out that initially an interim order was granted by the Supreme Court in Special Leave Petition No.17212 of 2007 filed by the High Court to assail the order passed in Sanjay Agarwal (supra), but it was ultimately disposed of by the Supreme Court on 21 February 2014 in terms of the judgment rendered by the Supreme Court in Deepak Agarwal (supra). It is his submission that the corrigendum was issued by the High Court on 26 June 2014 to give effect to the judgment of the High Court in Sanjay Agarwal (supra) and the judgment of the Supreme Court in Deepak Agarwal (supra).
We have considered the submissions advanced by learned counsel for the parties.
Recruitment to the Uttar Pradesh Higher Judicial Service is made in accordance with the Rules. Rule 5(c) of the Rules, which had been challenged in Sanjay Agarwal (supra), reads as follows:
"5. Sources of recruitment.--The recruitment to the service shall be made -
(a) ............
(b) .............
(c) by direct recruitment from amongst the 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."
It was contended before the Division Bench in Sanjay Agarwal (supra) that the aforesaid provision permits even such Advocates who have less than seven years of standing at the bar as on the date of submission of application to be considered for appointment because the cut-off date for the purpose of determining the standing at the bar has been fixed as the first day of January of the next following year in which the notice inviting application is published. In this connection it was pointed out that though the notice in question had been published on 31 March 2007, but the cut-off date was notified as 1 January 2008 which would mean that an Advocate of less than seven years standing at the bar as on 31 March 2007 would also be eligible to appear in the selection. The Division Bench held that Rule 5(c) of the Rules, to the extent it provides "on the first day of January next following the year in which the notice inviting application is published", is ultra vires Article 233(2) of the Constitution and, therefore, struck down that portion. The observations of the Court are as follows :
"(51) A perusal of the aforesaid makes it clear that for the purpose of discharging its function of making recommendation for appointment of District Judges from Bar an advertisement shall be published by the Court in various leading news papers of the State. The applications shall be received by the Registrar of the High Court as well as the District Judges within whose jurisdiction the candidates has been practicing. All the applications shall be accompanied by the certificate of age, academic qualifications, character standing as legal practitioner and other documents. The District Judges while forwarding the applications to the Court would also submit their own comments with respect to each candidate's character and fitness for appointment to the service. All these applications thereafter shall be processed by the selection committee constituted under Rule 16 who shall also conduct examination including interview. Thereafter the selection committee shall prepare a list and submit the record of all the candidates to the Chief Justice alongwith its own recommendation with respect to the names of the candidates in order of merit who in its opinion are suitable for appointment in the service. Rule 18 sub-rule 3 term the entire exercise undertaken by the selection committee as "preliminary selection". Under Rule 18(4) the Court thereafter shall examine the recommendations of the selection committee and prepare a list of selected candidates in order of merit which shall be forwarded to the Governor. Therefore, all the steps commencing from Rule 17(1) to Rule 18(4) are integrally connected with the process of recommendation of the Court and it cannot be said that the 'recommendation' means only the final list sent to the Governor and earlier thereto it is something unconnected and distinct from recommendation. Here the process of recommendation therefore commences on 31.3.2007 which may have completed thereafter. Presently as per directions of the Apex Court outer limit is 2.1.2008. If that be so, for the purpose of eligibility of an advocate for recommendation and appointment as District Judge, the length of his standing as an advocate has to be seen at least on the date when the process of recommendation commences and cannot depend on a date when the formal letter is ultimately issued. Since Rule 5(a) as it initially enacted 1975 Rules has already undergone amendment and presently it is Rule 5(c) which is on the statute book therefore there is no occasion to consider the validity of Rule 5(a) of 1975 Rules. So far as Rule 5(c) of 1975 Rules as it stands vide 6th Amendment dated 9.1.2007, we have no hesitation to hold it inconsistent and contrary to Article 233(2) of the Constitution of India and therefore is ultra vires to the extent it says ''on the first day of January next following the year in which the notice inviting application is published", the said rule is liable to be struck down.
(52) Consequently clause 2 of the instructions of the advertisement in so far as it provides the cut off date as 1.1.2008 is also declared illegal and accordingly quashed.
..................
(76) Thus only those petitioners who were enrolled as Advocates and have practiced as such for 7 years are eligible to appear in Higher Judicial Service Examination of U.P. and cannot be disqualified only on the ground that presently they have been appointed as APP/APOs. However, those who were never enrolled as an Advocate under 1961 Act will not be entitled to be considered under Article 233 of the Constitution of India. Issue no. 5 is decided accordingly.
RESULT
1. ......
2. Rule 5(c) of U.P. Higher Judicial Service Rules, 1975 to the extent it reads " on the first day of January next following the year in which notice inviting application is published", is held illegal and ultra vires of Article 233 (2) of the Constitution of India and to that extent it is struck down.
3. Clause (2) of the instructions of the advertisement dated 31.3.2007 in so far as it provides the cut-off date as 1.1.2008 for determining experience of an advocate is declared illegal and to that extent it is quashed.
4. ......
5. ......
6. ......"
As noticed above, the High Court had filed a Special Leave Petition in the Supreme Court to assail the order passed in Sanjay Agarwal (supra). Initially an interim order was granted by the Supreme Court but the Special Leave Petition was ultimately disposed of on 21 February 2014 in terms of the judgment of the Supreme Court rendered in Deepak Agarwal (supra). The order passed by the Supreme Court is as follows :
"Heard learned counsel for the parties and also perused the application for appropriate directions.
The Special Leave Petition Nos.17201-17212 of 2007 are taken on record and disposed of in terms of the judgment of this Court in Deepak Agarwal v. Keshav Kaushik & Ors. (2013) 5 SCC 277."
In Deepak Agarwal (supra) issues had arisen before the Supreme Court in regard to Haryana Superior Judicial Service Rules, 2007. Rule 11 which prescribes the qualifications for direct recruits is as follows:
"Rule 11. The qualifications for direct recruits shall be as follows :
(a) must be a citizen of India;
(b) must have been duly enrolled as an Advocate and has practiced for a period not less than seven years;
(c) must have attained the age of thirty five years and have not attained the age of forty years on the 1st day of January of the year in which the applications for recruitment are invited."
It would be seen that the aforesaid Rule prescribes that in order to be eligible, a person must have been enrolled as an Advocate and practiced for a period not less than seven years.
Article 233(2) of the Constitution deals with appointment of District Judges and is as follows :
"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 expression "if he has been for not less than seven years an Advocate" was interpreted by the Supreme Court in Deepak Agarwal (supra) to mean "seven years as an Advocate immediately preceding the application" and, therefore, the Supreme Court observed that one of the essential requirements articulated by the expression in Article 233(2) is that such person must with the requisite period be continuing as an Advocate on the date of application.
Rule 5(c) after deletion of the portion found to be ultra vires by a Division Bench of this Court in Sanjay Agarwal (supra) would read as follows :
"5(c) By direct recruitment from amongst the Advocates of not less than seven years standing."
Thus, in view of the decision of the Supreme Court in Deepak Agarwal (supra), no exception can be taken to the corrigendum issued by the High Court for bringing the advertisement in accordance with the decision rendered by the High Court in Sanjay Agarwal (supra) and the decision of the Supreme Court in Deepak Agarwal (supra) by prescribing that the candidate should have not less than seven years standing as on the date of application.
The contention of learned counsel for the petitioners that the eligibility criteria cannot be changed after the expiry of last date of submission of the application form cannot be accepted. The advertisement had prescribed essential qualifications in terms of Rule 5(c) of the Rules. The Division Bench of this Court in Sanjay Agarwal (supra), as noticed above, had declared that portion of the said rule which prescribes "not less than seven years standing on the first day of January next following the year in which the notice inviting application is published" to be ultra vires Article 233(2) of the Constitution. The Special Leave Petition filed by the High Court was disposed of by the Supreme Court in terms of the judgment rendered by the Supreme Court in Deepak Agarwal (supra). The Supreme Court, while interpreting Article 233(2) of the Constitution, has observed that the essential requirement is that such person must with requisite period be continuing as an Advocate on the date of the application.
The petitioners, therefore, cannot insist that the High Court should continue with the recruitment on the basis of a qualification prescribed in the advertisement which had been struck down by the High Court in Sanjay Agarwal (supra). The corrigendum seeks to ensure that the essential qualification for recruitment is in terms of the judgment of the Supreme Court in Deepak Agarwal (supra).
This apart, the issuance of the corrigendum after the last date of submission of the applications would not be contrary to Articles 14 and 16 of the Constitution as there can possibly be no candidate who can contend that he would have applied if this essential qualification was mentioned in the initial advertisement but has been prevented from submitting the application since the last date has expired. On the other hand, the corrigendum, which seeks to ensure that the advertisement is in accordance with the law declared by the High Court and the Supreme Court, only reduces the number of candidates who had applied.
The list which has been published by the High Court seeks to give effect to the corrigendum by including the names of such candidates who satisfy the essential requirement after excluding those candidates who may have been declared eligible earlier but are actually not eligible. Mere declaration in the earlier list that they were successful in the preliminary examination does not create in them a right to appear at the main examination even if they are not eligible. The decisions of the Supreme Court in Tej Prakash Pathak (supra) and C. Channabasavaih (supra), therefore, do not help the petitioners.
There is, therefore, no merit in this petition. It is, accordingly, dismissed.
Order Date :- 05.11.2014 GS (Dilip Gupta, J.) (Manoj Misra, J.)