The Kerala High Court set aside the appointment of a judicial officer as District & Sessions judge. The notification was calling applications for direct recruitment to the Higher Judicial Services. A single-judge bench delivered the judgement of Justice PV Asha.
The petitioner had his name in the rank list for appointment in the Kerala HJS. Nevertheless, she was not granted an appointment as her name was below the respondents in the rank list. The challenge was against the appointment of the respondent, a munsiff-magistrate, as on the date of appointment to the post.
The petitioner sought a direction to grant her appointment in place of the respondent. She alleged that the respondent was not eligible to apply for the post being a serving Munsiff Magistrate. The opening was for “practising advocates with” not less than 7 years’ practice”. Clause 6(2) of the notification stated that eligibility of a candidate would be determined regarding “the date of closure of stamp II process”. The date notified for it was 11.01.2018. However, it was later extended to 22.01.2018. On 11.01.2018 the Governor had appointed the respondent as a Munsiff-Magistrate.
She placed reliance on the SC decision in Dheeraj More v. HC of Kerala, wherein the court noted that candidates applying for direct recruitment “would continue to be a practising advocate as on the date of his appointment.” Hence, the respondent was not a practising advocate as on the date as read under Clause 6(2), i.e. 22.01.2018, she argued that he should be ineligible for the post and thus his appointment set aside.
The respondent filed counter-affidavits. His submission included proof of seven plus years of practice as on 01.12.2017. Furthermore, he argued that eligibility of a candidate is determined as on the date of final submission of application. In addition to that, he submitted his application before 11.01.2018 itself and did not avail the extension. Thus, he argued that the crucial date for determining eligibility was 27.12.2017, which was the last date for submitting applications.
Since, he was a practising advocate on that date, and hence his appointment as munsiff-magistrate on a later date cannot affect him as such. In the same vein, he also submitted that Dheeraj More’s case is inapplicable to his case. Thus, he explained that this case dealt with candidates who were judicial officers at the time of submission of application. He applied for the post of District Judge before being his appointment as a Munsiff-Magistrate.
The court agreed to the contentions that his appointment as a munsiff began only on 12.02.2018, and so, even on the extension of date of closure of step II process from 11.01.2018. to 22.01.2018.
Petitioner continued to be an advocate as on the cut-off date. However, the court placed reliance on Dheeraj More’s case. In that judgement, the court ruled that apart from the cut-off date, the applicant must not be in the legal service or other services of the Union or State at the time of appointment.
The applicant must be practising while applying on the cut-off/appointment date—the case of Vijaykumar Mishra v. HC of Judicature at Patna and ors. Where the court had ruled that applicants who entered legal service during the process of selection could attend the interview without tendering resignation, was overruled in Dheeraj More’s case.
Thus, the court ordered the respondent’s order to be set aside. Further, the court directed the appointment of the next candidate in the rank list who has been in continuous practice for seven years.
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