J.S. Khehar, C.J.
1. An advertisement was issued on 03.02.2005 inviting applications for filling up 13 vacant posts of Additional District & Sessions Judges. The petitioner, believing that he was eligible for the advertised posts, responded to the aforesaid advertisement. The petitioner's candidature was accepted and he was issued a roll number to appear in the written examination on 23.10.2005. Having qualified the aforesaid written examination, he was invited for an interview. The petitioner appeared for the interview on 09.09.2006. He claims to have performed well at the interview. Since his expectation did not fructify, he became aggrieved with the inaction of the authorities in not issuing any offer of appointment to him. The petitioner then addressed a representation dated 20.09.2006 highlighting the fact, that he was eligible for appointment (against the advertised posts). In response to the aforesaid representation, the petitioner received a communication dated 12.10.2006 informing him that his representation had been rejected.
2. The rejection of the representation of the petitioner led to the filing of the present writ petition. In so far as the issue of appointment of the petitioner to one of the advertised posts is concerned, in terms of the pleadings before this Court, the matter for purposes of the present adjudication, relates only to his eligibility. Whilst it is the contention of the learned Counsel for the petitioner, that the petitioner satisfies the mandate of Rule 5(c) of the Uttaranchal Higher Judicial Service Rules, 2004, and as such, must be deemed to be eligible. The contention at the hands of the respondents is, that the period during which the petitioner was a trainee advocate i.e. from 17.11.1997 to 23.11.1998 must be excluded (while determining his eligibility). It is not a matter of dispute, that if the trainee period aforesaid is excluded, the petitioner would not be eligible for appointment against the advertised posts in terms of the mandate of Rule 5(c) of the Uttaranchal Higher Judicial Service Rules, 2004.
3. In the advertisement dated 03.02.2005 the qualification for appointment against the advertised posts were depicted in paragraph 4. Paragraph 4 of the advertisement is being extracted hereunder:
4. Qualification:- A Candidate for recruitment to the service:
(i) Must be a citizen of India, and
(ii) Must be a practicing advocate for a period of not less than seven years on 1.1.2005.
4. The advertisement clearly mandates, that eligibility would be based on the possession of seven years' experience as a practicing advocate. The aforesaid experience was required to be fulfilled by 01.01.2005. On an identical issue, as has been raised at the hands of the learned Counsel for the petitioner, a Division Bench of this Court in Dr. Bhuvan Chandra Rathore v. The Hon'ble High Court of Judicature at Nainital and Anr. Writ Petition (M/B) No. 1145 of 2005, decided on 18.10.2005) has held that the period during which the petitioner therein was a trainee advocate had to be excluded for the total period during which he was a practicing advocate to determine his eligibility.
5. Despite the judgment rendered in Dr. Bhuvan Chandra Rathore's case (supra) for pressing his claim of eligibility, learned Counsel for the petitioner has strenuously relied on Rules 15 and 15A of the Bar Council of India Training Rules, 1995. The aforesaid rules were expressly taken into consideration in Dr. Bhuvan Chandra Rathore's case (supra). While deliberating on the matter, this Court in Dr. Bhuvan Chandra Rathore's case (supra) inter alia observed and concluded as under :
We are not inclined to accept this contention. The qualification required under the Rules and Annexure P2 Notification is 7 years' experience as a Practising Advocate and not 7 years' seniority in legal practice. During the period of training, a Trainee Advocate was only undergoing training under an Advocate Guide and during the period of training, he was not entitled to practise as an Advocate. According to Rule 2 of the Bar Council of India Training Rules, 1995 (hereinafter referred to as the 'Bar Council Rules') which came into force on 02.04.1996, no person shall be entitled to be enrolled as an advocate unless he is eligible to be enrolled as such under Section 24 of the Advocates Act, 1961 and has undergone training as prescribed under the said Rules. However while undergoing training, the Trainee shall be enrolled provisionally as Trainee Advocate after the approval of the name of his guide by the State Bar Council and the State Bar Council shall issue identity card to the provisionally enrolled Trainee Advocate for his identification. According to Rule 7, every candidate shall be bound to receive training for the period of one year under the same guide. According to Rule 8, during the period of training, the candidate shall regularly attend the chamber or office of the guide, study case papers, correspondence, draft pleadings, attend courts and in particular, study cases with a view to get acquainted with the practice in courts. According to Rule 9, every candidate shall maintain two diaries in the form approved by the State Bar Council; one for work done in chambers and the other for work done in courts.
Every candidate shall submit his diaries to the guide for scrutiny at least twice a month and obtain his signature with the dates in the diaries. Rule 13 provides that the State Bar Council may provide for lectures to be delivered by its members, legal luminaries, jurists on professional ethics and other topics at suitable places in the State and the attendance of trainees in such lectures be deemed to be a part of the training and shall be compulsory except on special cause to be shown. As per Rule 15A, a Trainee shall be enrolled provisionally as 'Trainee Advocate' after the approval of the name of his guide by the State Bar Council and on successful completion of training period, he shall be enrolled as 'Advocate' as defined under Section 2(a) of the Advocates Act, 1961. As per Rule 15B, the Trainee Advocates after their provisional enrolment, shall be entitled to appear in court for seeking adjournments and to make mentioning on instructions of their guide. The Bar Council Rules also provided that a male Trainee shall wear the dress of a male Advocate except for band and gown and shall wear plain maroon coloured tie badge indicating that he is a Trainee. A female Trainee shall wear dress of a female Advocate except for band and gown and shall wear a badge indicating that she is a Trainee. The above-mentioned provisions in the Bar Council Rules clearly establish that during the period of training prescribed under the said Rules, a Trainee Advocate is not an Advocate as defined under Section 2(a) of the Advocates Act, 1961 and that he is not allowed or authorised to practise as an Advocate and hence, a Trainee Advocate cannot be treated as a Practising Advocate. In the judgment of the Hon'ble Supreme Court in V. Sudeer v. Bar Council of India and Anr. reported in : (1999) 3 SCC 176, it was held that under the Bar Council of India Training Rules 1995, a Trainee Advocate had only a limited right to ask for adjournment and mentioning cases of his guide. If a Trainee Advocate had only a limited right to ask for adjournment and mentioning cases of his guide and had no right to discharge all the functions and duties of an advocate, the Trainee Advocate was not a Practising Advocate during the period of training and the period spent as Trainee Advocate cannot be counted for experience as a Practising Advocate.
9. Learned Counsel for the petitioner invited our attention to Rule 15 of the Bar Council Rules which provided that a Trainee on successful completion of training period shall be entitled to seniority from the date of provisional enrolment as Trainee under the Rules. He also invited our attention to Rule 15A which provided that on successful completion of training period, the Trainee shall be enrolled as 'Advocate' as defined under Section 2(a) of the Advocates Act, 1961 and shall be entitled to seniority as Advocate from the date of provisional enrolment. In view of the above-mentioned provisions in Rules 15 and 15A of the Bar Council Rules, learned Counsel contended that when a Trainee is enrolled as Advocate on successful completion of training, he will be deemed to have been enrolled as Advocate on the date of provisional enrolment as Trainee Advocate. According to the learned Counsel, Annexure P1 certificate dated 23.02.2005 was issued by the Bar Council of U.P. in view of the above-mentioned provisions in Rules 15 and 15A. The logic and the purpose of the said provisions contained in Rules 15 and 15A of the Bar Council Rules are not clear. The Bar Council Rules were struck down by the Hon'ble Supreme Court on the ground that the said Rules were beyond the rule making power of the Bar Council of India. Moreover, it is also not clear as to what are the implications of the expression 'seniority in legal practise.' At any rate, Annexure P1 certificate cannot have the effect of certifying that the petitioner was a Practising Advocate even prior to the actual date of his enrolment as an advocate or that the period of training can be counted for the purpose of experience as a Practising Advocate, even though the petitioner could not have practised and was not actually practising as an advocate during the period of training. By any stretch of imagination, it cannot be held that the Bar Council is competent to declare or certify that a person was a practising advocate during the period when he was not entitled to practise as an advocate and did not actually practise as an advocate.
We hereby express our respectful agreement, with the conclusions drawn by the Division Bench in Dr. Bhuvan Chandra Rathore's case (supra). In view of the above, we are satisfied that no benefit can be deemed to flow to the petitioner on the basis of the provisions of the Bar Council Rules relied upon by him.
6. Despite our conclusion based on Dr. Bhuvan Chandra Rathore's case (supra), it is the submission of the learned Counsel for the petitioner, that the judgment in the aforesaid case should not be deemed to be binding on the petitioner, in view of the fact, that in the aforesaid judgment the qualifications depicted in the advertisement were taken into consideration. In this behalf it is pointed out, that as per the advertised qualifications, to be eligible for appointment against the posts of Additional District & Sessions Judge, a candidate must be 'a practising advocate' for a period of not less than seven years. It is the submission of the learned Counsel for the petitioner, that the statutory rules regulating appointment to the post of Additional District & Sessions Judge is, however, slightly different. Rule 5 of the Uttaranchal Higher Judicial Service Rules, 2004 is being extracted hereunder:
5. Sources of Recruitment
The recruitment to the service shall be made
(a) By promotion from amongst the cadre of civil judge (Senior Division);
(b) By selection through limited competitive examination from amongst Civil Judges (Senior Division) cadre;
(c) By direct recruitment of Advocates of not less than seven years standing on the first day of January of the year in which the notice inviting applications is published.
7. It is the submission of the learned Counsel for the petitioner based on Rule 5(c) extracted hereinabove, that the mandate of the rules requires that for appointment by direct recruitment, an advocate of not less than 'seven years standing' is eligible. It is therefore submitted, that in place of 'seven years practice', it would be relevant to consider 'seven years standing' to determine the eligibility of the petitioner. In so far as the instant aspect of the matter is concerned, in order to demonstrate that the petitioner has seven years standing at the Bar, reference has been made to the judgment rendered in Mahesh Chandra Gupta v. Union of India and Ors. : (2009) 8 SCC 273. Reliance has pointedly been placed on the observations recorded in paragraph 50 thereof, which is being reproduced hereunder:
50. Before concluding on this point, we may state that the word 'standing' connotes the years in which a person is entitled to practise and not the actual years put in by a person in practise. [See Halsbury's Lan England, 4th Edn. Reissue, Vol. 3(1), Paras 351 and 394 of the Chapter under the heading 'Barristers'.] Under Section 220(3)(a) of the Government of India Act, 1935, qualifications were prescribed for appointment as a Judge of a High Court. A barrister of at least ten years' standing was qualified to be appointed as a Judge of the High Court. As stated above, the word 'standing' connotes the years in which a person is entitled to practise, not the actual years put in by that person in practise.
8. We have considered the submission advanced by the learned Counsel for the petitioner based on Rule 5(c) of the Uttaranchal Higher Judicial Service Rules, 2004, coupled with, the judgment rendered by the Apex Court in Mahesh Chandra Gupta's case (supra). We are satisfied, that the petitioner can not derive any benefit therefrom. Even if the claim of the petitioner is considered by taking into consideration, that 'seven years standing' would render a person eligible for appointment to the post of Additional District & Sessions Judge, yet in terms of the judgment rendered in Mahesh Chandra Gupta's case (supra), a person would be entitled to take into consideration only such period towards the term 'standing', during which he was entitled to practice. In so far as the instant determination is concerned, while reproducing the observations recorded in Dr. Bhuvan Chandra Rathore's case (supra), we have highlighted certain portions in the extracted portion of the judgment. In the aforesaid highlighted portions, the Division Bench of this Court expressly arrived at the conclusion, that a trainee advocate is not 'allowed or authorised to practice as the Advocate', while he was a trainee advocate, and as such, cannot be treated as a practising advocate. In our view, therefore, even if the term 'seven years practice' is substituted by the words 'seven years standing' so as to determine the eligibility of candidates for appointments to the post of Additional District & Sessions Judge, still the petitioner would not fulfil the condition of eligibility as in our view, his period of practice as a trainee advocate has to be excluded from consideration because during this period he was not allowed or authorised to practice as an advocate. It has been acknowledged by the learned Counsel for the petitioner, that unless the period during which the petitioner was a trainee advocate is included, he would be ineligible. We are satisfied that the period from 17.11.1997 to 23.11.1998, during which the petitioner was a trainee advocate, cannot be taken into consideration to determine his eligibility. As such, we have no hesitation in concluding that the petitioner was ineligible for appointment against the advertised posts.
9. In view of the above, we find no merit in this petition and the same is accordingly hereby dismissed.