'Continuous' 7-Yrs Practice As Advocate Not Required For District Judge Appointment: Himachal Pradesh High Court
The Himachal Pradesh High Court has ruled that continuous practice as an advocate for seven years is not required for appointment as an Additional District and Sessions Judge under Article 233(2) of the Indian Constitution.Delivering the judgment, the court said:“Article 233(2) of the Constitution of India does not require continuous practice for seven years as an Advocate; it merely...
The Himachal Pradesh High Court has ruled that continuous practice as an advocate for seven years is not required for appointment as an Additional District and Sessions Judge under Article 233(2) of the Indian Constitution.
Delivering the judgment, the court said:
“Article 233(2) of the Constitution of India does not require continuous practice for seven years as an Advocate; it merely stipulates that the candidate must have seven years of practice and be an Advocate on the date of the application and appointment.”
Chief Justice M.S. Ramachandra Rao and Justice Satyen Vaidya made these observations while adjudicating a petition challenging the appointment of respondent-Additional District & Session Judge in Himachal Pradesh Judicial Services, due to breaks in his advocacy practice.
The respondent had applied and qualified for the written test. However, the petitioner contested the respondent's eligibility based on his career history, which included employment as a District Legal Aid Officer and a Civil Judge Class-II in Madhya Pradesh, causing interruptions in his practice as an advocate.
The petitioner argued that breaks in practice rendered the respondent ineligible under Article 233(2) of the Indian Constitution, which requires an advocate to have at least seven years of practice to qualify for the position.
The petitioner also relied on the Supreme Court judgment in Dheeraj Mor vs. High Court of Delhi, asserting that continuous practice is essential. Additionally, the petitioner cited Praveen Garg vs. High Court of Delhi and Others, where the respondent's application for a similar position was rejected for lacking continuous practice.
The respondent argued that his cumulative periods of active practice as an advocate, totalling more than seven years met the eligibility requirements under Article 233(2) of the Constitution. He contended that his temporary roles as a District Legal Aid Officer and Civil Judge Class-II in Madhya Pradesh should not disqualify him, as he had resigned from those services and resumed his advocacy practice after each position.
The Court examined the Himachal Pradesh Judicial Service Rules, 2004, the cited precedents, and relevant Constitutional provisions. It was found that the respondent had periods of active practice from July 2012 to March 2015, from July 2015 to April 2016, and from May 2018 to November 2022. These periods cumulatively amounted to more than seven years.
The bench thus remarked, “Art.233(2) of the Constitution of India, on a plain reading, also does not support the view that the candidate must have “continuous” 7 years of practice as an Advocate, though he is required to have minimum 7 years of practice as Advocate and must be continuing as Advocate on date of making application for appointment and also on the date of his/her appointment.”
The Court expressed its disagreement with a previous judgment by the Delhi High Court, which had required continuous seven years of practice for eligibility. The Delhi High Court's decision was based on an interpretation of Article 233(2) that necessitated uninterrupted practice as an advocate.
However, the Himachal Pradesh High Court opined that this interpretation was inconsistent with Supreme Court rulings. The judges noted, “We do not agree with the view of the Delhi High Court's understanding of the said two decisions that they insist that there ought to be continuous 7 years practice for being eligible to be appointed as an Additional District Judge, as is being contended by counsel for petitioner.”
The Court also addressed the "Note" under clause (c) of Rule 5 of the Himachal Pradesh Judicial Service Rules, 2004. This note allowed periods spent in judicial service to count towards the seven-year practice requirement.
The Court struck down this provision, finding it inconsistent with the Supreme Court's interpretation. The judges stated, “For constituting experience of 7 years of practice as Advocate, experience obtained in judicial service cannot be equated/combined.”
Ultimately, the court upheld the respondent's eligibility for the judicial appointment.
Case Title: Sandeep Sharma V/s Hon'ble High Court of Himachal Pradesh and others
Citation: 2024 LiveLaw (HP) 36