High Court Dismisses Plea Challenging Constitutional Validity Of Rule 9(2) Of Delhi Higher Judicial Service Rules

The Delhi High Court has dismissed a plea challenging the constitutional validity of the recently-amended Rule 9(2) of the Delhi Higher Judicial Service Rules, 1970.

"In view of the decision of the Supreme Court in Dheeraj Mor v. Hon'ble High Court of Delhi, we are unable to accept that Rule 9(2) of the Rules, as set out above, falls foul of Article 233 of the Constitution of India. On the contrary, Rule 9(2) of the Rules is in conformity with the decision in the case of Deepak Aggarwal v. Keshav Kaushik & Ors," said the court.

Under the Rule 9 (2), a candidate "must have been continuously practising as an advocate for not less than seven years as on the last date of receipt of applications" for recruitment of judicial officers.

Article 233(2) states that a person not already in the service of the Union or of the State shall only be eligible to be appointed as 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."

A division bench of Justice Vibhu Bakhru and Justice Purushaindra Kumar Kaurav rejected the plea moved by a lawyer Praveen Garg who had argued that Rule 9(2) falls foul of Article 233(2) of the Constitution of India as the latter does not expressly require a candidate to be in continuous practice of at least 7 years to be eligible to be appointed as a District Judge.

Garg in the petition said he has practiced as an advocate cumulatively for a period of 7 years and 2 months as on March 12, 2022, the last date to apply for the Delhi Higher Judicial Services Examination, 2022.

He argued that while he qualifies the eligibility criteria under Article 233(2), Rule 9(2) of the Rules requires an applicant to be in continuous practice of at least 7 years as on the date of the application.

The court was told that he enrolled with the Bar Council of Punjab and Haryana on July 24, 2012 and joined active practice. In March 2015, he joined the services as District Legal Aid Officer in Madhya Pradesh. In the same year, he appeared for Civil Judge, Class- II Examination, 2015 conducted by the Madhya Pradesh High Court and was successfully selected as Civil Judge, Class-II.

Garg resigned from the services as District Legal Aid Officer in July 2015 after serving four months and twenty days and "immediately resumed practice" at bar. Thereafter, he joined as judicial officer in April 2016 and served on the post for a period of two years and one month. He later resigned from the post in May 2018.

He thereafter joined active practice as an advocate at Ambala, Haryana as well as at the Punjab and Haryana High Court. He applied for DHJSE, 2022 earlier this year.

Garg secured 584.5 marks out of 1000 marks which were higher than the marks secured by the candidate placed at the 32nd position on the select list. However, his name was not included in the list of selected candidates on the ground that he had not qualified the eligibility criteria of a continuous practice of seven years as an advocate as on date of filing the online application.

While rejecting the plea, the bench found merit in the submission of the counsel appearing for High Court establishment that the issue raised in the matter is no longer res integra.

The bench noted that the Supreme Court in the case of Deepak Aggarwal v. Keshav Kaushik & Ors. found merit in the submission that the expression "if he has been for not less than seven years as an advocate", as used in Article 233(2), must be read to mean seven years immediately preceding his appointment or application and not seven years at any time in the past.

The court also referred to another judgment of the Supreme Court in Dheeraj Mor v. Hon'ble High Court of Delhi and refused to accept the contention that Rule 9(2) falls foul of Article 233.

It also noted that Rule 9(2) was amended via a notification dated 08.02.2022 after the Supreme Court decisions.

On the argument that a review petition has been filed in Dheeraj Mor v. Hon'ble High Court of Delhi, the court said "that too is of little assistance to the petitioner as unless the decision is reviewed, it is a binding precedent."

Title: PRAVEEN GARG v. THE HIGH COURT OF DELHI AND ORS.

Citation: 2022 LiveLaw (Del) 1195

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