Bindu v. High Court of Delhi

1. The petitioner has filed the present review petition seeking a review of the order dated 16.12.2022, whereby the above-captioned petition was rejected on the ground that the issues raised are covered by the decision of this Court in Praveen Garg v. The High Court of Delhi & Ors[1]. 1 W.P.(C) No.17131/2022 decided on 15.12.2022.

2. The petitioner, in the present case, was enrolled as an advocate in January, 2006. Subsequently, some time in December, 2014, she was selected as an Assistant Public Prosecutor for the Delhi government, on a contractual basis. The petitioner was selected through the Union Public Service Commission (UPSC) for the post of the Examiner of Trademarks (qualifying for the said post on account of two years of practice in law). She discharged her functions as the Examiner of Trademarks during the course of her employment in the said post from 07.08.2017 to 08.02.2019. During the period of her employment as Examiner of Trademarks with the Patent Office, her enrolment as an advocate, with the Bar Council of India was suspended.

3. The petitioner was held to be ineligible for appointment to the Delhi Higher Judicial Services (DHJS) pursuant to the DHJS Examination, 2022, on the ground that she did not satisfy the eligibility criteria of seven years of continuous practice as an advocate, on the date preceding the last date of the application, as required in terms of Rule 9(2) of the Delhi Higher Judicial Services Rules, 1970 (hereafter ‘the DHJS Rules’).

4. The petitioner impugns Rule 9(2) of the DHJS Rules as ultra vires to Article 233(2) of the Constitution of India. It is the petitioner’s case that Article 233(2) of the Constitution of India posits an eligibility criteria of seven years continuous practice as an advocate; it does not provide that the seven years of continuous practice as an advocate period be reckoned with reference to the last date for submitting the application. Thus, according to the petitioner, if an advocate has practiced for seven years at any time in the past, she or he would be eligible to be appointed as a District Judge in terms of Article 233(2) of the Constitution of India. This is notwithstanding that she or he may have for several years prior to his application, not been enrolled as an advocate.

5. Undisputedly, the said issue was considered and decided by this Court in Praveen Garg v. The High Court of Delhi & Ors.1. It is also material to note that the Special Leave to Appeal[2] preferred by the petitioner in that case was also dismissed by the Supreme Court by an order dated 16.01.2023.

6. In view of the above, we find no grounds to review the order dated 16.12.2022.

7. The learned counsel appearing for the petitioner earnestly contended that the order dated 16.12.2022 is required to be reviewed as Praveen Garg v. The High Court of Delhi & Ors.[1] – on the basis of which the said order rejecting the above captioned petition was passed – had relied upon the decision of the Supreme Court in Dheeraj Mor. v. Hon’ble High Court of Delhi[3] and that the application seeking review of the said decision was pending before the Supreme Court. He also submitted that the Supreme Court has permitted the petitioner to file the present review petition on the ground that the review petition in the case of Dheeraj Mor. v. Hon’ble High Court of Delhi[3] is pending

8. He also states that in the case of Praveen Garg v. The High Court of Delhi & Ors.1, petitioner therein, had not practiced as an advocate for a continuous period of seven years. He had claimed that his cumulative period of practice as an advocate, although not continuous, aggregated seven years. And, that is sufficient to satisfy the eligibility criteria for being appointed as a District Judge under Article 233(2) of the Constitution of India.

9. We are not persuaded to accept the aforesaid submissions and are unable to accept that the decision dated 16.12.2022 warrants to be reviewed. The fact that the review petition seeking review of the decision in the case of Dheeraj Mor. v. Hon’ble High Court of Delhi[3] is pending before the Supreme Court, was also noted by this Court in the case of Praveen Garg v. The High Court of Delhi & Ors.[1] However, this court was unable to accept that pending consideration of the review petition, the said decision could be disregarded. It continues to be binding precedent.

10. The contention that the facts of the present case are different from the facts in the case of Praveen Garg v. The High Court of Delhi & Ors.1, and thus the said decision is not applicable, is erroneous. It was the petitioner’s contention in the case of Praveen Garg v. The High Court of Delhi & Ors.[1] that Rule 9(2) of the DHJS Rules was ultra vires to Article 233(2) of the Constitution of India, as Article 233(2) of the Constitution of India does not postulate the eligibility criteria of a continuous practice of seven years, preceding the date of the application for appointment as a District Judge. This is precisely the issue that is sought to be raised by the petitioner in this case albeit in the factual context that the petitioner had qualified in respect of the criteria of seven years continuous practice on account of her continuous practice, prior to being appointed as the Examiner of Trademarks on 07.08.2017. The question whether the seven years continuous practice is required to be considered with reference to the last date of application for appointment as a District Judge was duly considered in the decision of this Court in Praveen Garg v. The High Court of Delhi & Ors.[1]

11. The review petition is, accordingly, dismissed. All pending applications are also disposed of.

VIBHU BAKHRU, J PURUSHAINDRA KUMAR KAURAV, J JULY 4, 2023