Advocate Needs To Be In 'Continuous Practice' For 7 Yrs On Date Of Application To Seek Appointment As District Judge: Allahabad HC

The Allahabad High Court has clarified that for seeking appointment as Judicial Officer/District Judge as per Article 233 (2) of the Constitution of India, an Advocate has to be in continuous practice for not less than 7 years [with no break in between] as on the cut-off date and at the time of appointment as District Judge.

It may be noted that Article 233 of the Constitution of India deals with the Appointment of district judges and its subclause (2) mandates that 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 the appointment.

The Bench of Justice Dr. Kaushal Jayendra Thaker and Justice Ajai Tyagi relied upon the apex court's ruling in the case of Deepak Aggrawal v. Keshav Kaushik and others, (2013) 5 SCC 277, wherein it had been held that as per Article 233(2), a person seeking appointment as a District Judge must be practicing as an advocate for continuous 7 years (without any break) on the date of application.

The case in brief

Essentially, the Court was dealing with a plea filed by one Bindu who applied for being appointed as a Judicial Officer/District judge in the U.P. State Higher Judicial Services, however, after she cleared the preliminary exam, she was not permitted to appear for the final exams by the High Court on the administrative side on the ground that she does not have continuous practice as an advocate for seven years on the date of exam/filling form.

Against this backdrop, she moved to the Court praying that she be allowed to sit for the final examination.

Court's observations 

The Court noted that the petitioner ceased to be an Advocate under the Advocates Act, 1961 in August 2017 when she got selected as EXAMINER OF TRADEMARK & G.I. as in August 2017 she surrendered her practicing licence.

Thereafter in the year 2019, she was selected as Public Prosecutor in CBI where she is still working, however, the Court noted that she is a Public Prosecutor at present but as Public Prosecutor, she has not put in continuous service of 7 years so that she becomes eligible to sit for the final examination.

"It is clear from the factual data that petitioner cannot seek appointment as Judicial Officer/District Judge in this calendar year as the petitioner does not fulfill the criteria fixed as per provisions of Articles 233, 234, and 236 of the Constitution of India...The term used "has been" [used under Article 233 (2)] is interpreted to mean seven years and has to be in present perfect continuous tense and not has been seven years during any period. This interpretation will not permit us to entertain this petition and grant the mandamus to permit the petitioner to appear in the exam," " the Court held.

Significantly, the Court also underscored that when the petitioner was employed as an examiner of trademark & GI [during the period between 2017 to 2019], there was a break in her legal practice and this break can't be condoned in view of the clear mandate of Article 233 and the concerned rules. In view of these facts, this petition was dismissed.

Case title - Bindu v. High Court Of Judicature At Allahabad Through Its R.G And Another

Case Citation: 2022 LiveLaw (All) 137

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