Article 233(2) | 7 Yrs Continuous Practice As Advocate Must Be 'Immediately' Before Recruitment As District Judge From Bar: Orissa HC

The Orissa High Court has held that a person must have practiced as an Advocate continuously for seven years 'immediately' before submitting application for direct recruitment in the cadre of District Judge from the Bar.

The Division Bench of Justice Debabrata Dash and Justice Gourishankar Satapathy clarified that mere seven year (or more) experience as an Advocate at a point of time in the past would not make a person eligible unless he/she has been in practice immediately before sitting for such recruitment process.

The petitioner Trupti Mayee Patra got herself enrolled with Odisha State Bar Council, Cuttack and practiced as an Advocate from 2004 to 2014. After being selected as a Junior Clerk, she surrendered her license on 04.05.2016 and thereafter, in the year 2018, she got appointed as an Assistant Public Prosecutor with effect from 13.03.2018.

Subsequently, she applied for and was allowed to sit in the recruitment examination to the post in the cadre of District Judge from the Bar in the year 2020, 2021 and 2022, but remained unsuccessful. On 29.08.2023, the High Court issued an advertisement inviting applications from eligible candidates for direct recruitment to the post in the cadre of District Judge from the Bar for the year 2023.

Accordingly, the petitioner submitted her application for the post by enclosing necessary documents, but she was found ineligible and her name was found missing in the list of eligible candidates issued by the High Court Registry.

Therefore, being aggrieved by such action, the petitioner filed this petition invoking the writ jurisdiction of the Court under Articles 226 and 227 of the Constitution.

Subhasis Das, counsel for the petitioner submitted that the petitioner was allowed to sit for the examination for direct recruitment in the cadre of District Judge from the Bar in the year 2020, 2021 and 2022. Thus, he contended that being allowed in the previous years, she cannot be deprived of her candidature this year.

The counsel further argued that the authorities are estopped from rejecting the candidature of the petitioner this year as the 'principle of acquiescence' will come to play as her eligibility to sit in the examination was never doubted in the previous years.

The counsel, thus, prayed for a direction to issue a fresh list of eligible candidates including the name of the petitioner. In support of his contention, he placed reliance on the decision of the High Court in Basanta Kumar Mohanty v. Utkal University & Ors. and the judgment of the Supreme Court in Union of India and others v. N. Murugesan etc.

Sailaza Nandan Das, Addl. Standing Counsel, on the other hand, submitted that since the petitioner was not having seven years continuous practice as on the cut-off date, she was rightly found ineligible to appear in the exam. He relied on the decision of the Apex Court in Deepak Aggarwal v. Keshav Kaushik & Ors.

Court's Observations

The Court observed that it is clear from the records that the petitioner was not having seven years of continuous practice just preceding the date of her application. The Court then delved to decide as to whether seven years of practice as an Advocate at any point of time is required or one must have such continuous practice immediately before he/she sits for recruitment test.

The Court referred to Article 233(2) of the Constitution which provides that “a person not already in the service of Union or the State shall only be eligible to be appointed a District Judge if he has been for not less than seven years as advocate or a pleader and is recommended by the High Court for appointment”.

The Court relied upon the following observation made by the Supreme Court in Deepak Aggarwal (supra) while interpreting the terms 'has been' used under Article 233(2):

“The present perfect continuous tense is used for a position which began at sometime in the past and is still continuing. Therefore, one of the essential requirements articulated by the above expression in Article 233(2) is that such person must with requisite period be continuing as an advocate on the date of application.”

The Bench also borrowed substantiation from the judgment of the Apex Court in Dheeraj Mor v. High Court of Delhi, wherein the Court has interpreted the above constitutional provision in the words quoted below:

“The requirement of 7 years of minimum experience has to be considered as the practising advocate as on the cutoff date, the phrase used is a continuous state of affair from the past. The context 'has been in practice' in which it has been used, it is apparent that the provisions refer to a person who has been an advocate or pleader not only on the cutoff date but continues to be so at the time of appointment.”

The Court also discarded the argument of the petitioner that the authorities are estopped from disallowing her to sit in the examination as she was allowed to appear in it in the previous years.

“…merely because a person was inadvertently allowed earlier to appear in the examination, who was not eligible, confers no right on him or her to appear in the exam by contending inter alia that the authorities have allowed him/her to appear in the exam earlier, especially when he/she does not possess the requisite eligibility.”

As a result, the Court was of the view that as the petitioner was not having the requisite seven years of continuous practice as an Advocate immediately before applying for the recruitment process, she cannot be allowed to take part in the examination. Accordingly, the writ petition was dismissed.

Case Title: Trupti Mayee Patra v. Registrar, Examination, Orissa High Court, Cuttack

Case No: W.P.(C) No. 35020 of 2023

Date of Order: November 03, 2023

Counsel for the Petitioner: Mr. Subhasis Das, Advocate

Counsel for the Respondent: Mr. Sailaza Nandan Das, Addl. Standing Counsel

Citation: 2023 LiveLaw (Ori) 112

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