1. Heard learned Counsel Sri S. Sharat Kumar for petitioner, learned Standing Counsel for High Court for the State of Telangana Sri Kowturu Pawan Kumar appearing for respondent Nos. 1 and 2 and learned Government Pleader for Services-III appearing for respondent No. 3.

2. On 21.10.2020 Notification No. 59/2020-RC was issued calling for applications for recruitment to the posts of District Judge (Entry Level). The total number of posts notified were 09, out of which 02 were meant for Scheduled Castes category, whereunder, 01 post was reserved for Women category. Petitioner applied to the said post and participated in the recruitment process. In the results announced by respondent Nos. 1 and 2, the name of petitioner was not found in the selection list. Therefore, petitioner applied for information under the provisions of the Right to Information Act, 2005, specifying reasons as to why he was not selected in the qualifying examination. On 22.11.2021 information was furnished to the petitioner by the State Public Information Officer/Registrar Judicial-I/Registrar (Recruitment). With reference to the query raised i.e., "what is the reason for not declaring my name in final result which is declared on 12.08.2021 for the District fudge post', it was replied that petitioner was not having continuous practice for seven years during the period from 21.10.2017 to 21.10.2020 and therefore, not qualified in view of the law laid down by the Hon'ble Supreme Court in Dheeraj Mor v. High Court of Delhi, 2020) 7 SCC 401. Challenging the said reply given to the petitioner, this writ petition is filed.

3. According to learned Counsel for petitioner, though petitioner joined Aurora's Legal Science Institute, Nalgonda, as Assistant Professor in law, he is having seven years of practice as an Advocate, and since the said institute was not having the requisite permissions, no classes were conducted by him and later, he resigned the post of Assistant Professor in law. He submits that petitioner was on rolls of the said institute only from 20.05.2017 to 23.09.2017. He further submits that as petitioner was involved in teaching law only, even assuming that it was an employment during that period, the said period cannot be excluded towards computation of experience as a Lawyer as he was supposed to undertake the job of teaching law students only and as per Rule 3 of the Advocates (Right to take up Law Teaching) Rules, 1979, (for short 'Rules, 1979') a Lawyer is entitled to take up teaching of law and therefore, acceptance of assignment as Assistant Professor cannot be a bar to appear in the examination for recruitment to the post of District Judge (Entry Level) and rejection of his application by referring to the judgment of the Hon'ble Supreme Court is clearly erroneous.

4. Learned Counsel for the petitioner further submits that Section 49(a) of the Advocates Act, 1961 (for short 'Act, 1961') vests power in the Central Government to make rules and in exercise of the said power, the Central Government made Rules, 1979. He submits that Rule 3 of the Rules, 1979, authorized a practicing Lawyer to take up teaching in law. Therefore, the assignment of petitioner as Assistant Professor in law is in accordance with the Rules, 1979 and thus, the period spent by him as Assistant Professor in law should also be computed towards experience as an Advocate to compete to the post of District Judge (Entry Level).

5. Per contra, learned Standing Counsel submits that Article 233 of the Constitution of India, 1949, requires an Advocate to put in seven years of experience till the date of notification as eligibility criteria and does not recognize any services rendered, including the service involved in teaching law, towards computation of experience as a Lawyer. Further, in the seven years preceding the date of notification, if a person was employed by any law college to take up the assignment of teaching, that period has to be excluded towards computation of experience as an Advocate and would also amount to break in experience, whereas, the requirement is continuous experience of seven years till the date of notification and by applying the said provision, the petitioner is not eligible to compete for the post of District Judge (Entry Level) as there was a break in his experience from the period 25.04.2017 to 12.10.2017 and after 12.10.2017 the petitioner does not have seven years of experience continuously as an Advocate till the date of notification. He also placed reliance on the decision of the Hon'ble Supreme Court in Dheeraj Mor's case (supra).

6. The short issue for consideration is whether the petitioner satisfies the requirement of seven years practice as an Advocate to compete to the post of District Judge (Entry Level).

7. Article 233 of the Constitution of India, 1949, reads as under:

"233. Appointment of District Judges.-(1) Appointments of persons to be, and the posting and promotion of, District Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.

(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed as 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.

233-A. Validation of appointments of, and judgments, etc., delivered by, certain District fudges.-Notwithstanding any judgment, decree or order of any Court,-

(a) (i) no appointment of any person already in the judicial service of a State or of any person who has been for not less than seven years an Advocate or a pleader, to be a District Judge in the State, and

(ii) no posting, promotion or transfer of any such person as a District Judge, made at any time before the commencement of the Constitution (Twentieth Amendment) Act, 1966, otherwise than in accordance with the provisions of Article 233 or Article 235 shall be deemed to be illegal or void or ever to have become illegal or void by reason only of the fact that such appointment, posting, promotion or transfer was not made in accordance with the said provisions;

(b) no jurisdiction exercised, no judgment, decree, sentence or order passed or made, and no other act or proceeding done or taken, before the commencement of the Constitution (Twentieth Amendment) Act, 1966 by, or before, any person appointed, posted, promoted or transferred as a District Judge in any State otherwise than in accordance with the provisions of Article 233 or Article 235 shall be deemed to be illegal or invalid or ever to have become illegal or invalid by reason only of the fact that such appointment, posting, promotion or transfer was not made in accordance with the said provisions."

8. The post of District Judge (Entry Level) is governed by the Telangana State Judicial (Service & Cadre) Rules, 2017 (for short 'Rules, 2017') notified in exercise of powers conferred by Articles 233, 234, 235 and 237 read with proviso to Article 309 and proviso to Clause 3 of Article 320 of the Constitution of India. Rule 5 of the Rules, 2017, prescribe the eligibility criteria. According to Rule 5-l(a) of the Rules, 2017, a person is eligible to apply to the post of District Judge (Entry Level) by direct recruitment if he has been practising for not less than seven years as an Advocate as on the date of publication of the advertisement in the newspapers. In the recruitment notification dated 21.10.2020 the same provision is incorporated.

9. The issue of serving employees including Judicial Officers for direct recruitment to the post of District Judge was considered by the Hon'ble Supreme Court in Deepak Aggarwal v. Keshav Kaushik, (2013) 5 SCC 277 [LQ/SC/2013/88] . The questions considered by the Hon'ble Supreme Court in the above case were:

"(1) what is the meaning of the expression "the service" in Article 233(2) of the Constitution of India

(2) what is meant by "Advocate" or "pleader" under Article 233(2)

(3) whether a District Attorney/Additional District Attorney/Public Prosecutor/Assistant Advocate General, who is a full-time employee of the Government and governed and regulated by the statutory rules of the State and is appointed by direct recruitment through the Public Service Commission, is eligible for appointment to the post of District Judge under Article 233(2) of the Constitution of India"

10. On thorough analysis of the provisions of the Article 233 of the Constitution of India, the service Rules governing the judicial services in the State of Haryana, the Act, 1967, and the Rules, 1979, the Hon'ble Supreme Court held as under:

"98. Admittedly, by the above resolution of the Bar Council of India, the second and third paragraphs of Rule 49 have been deleted but we have to see the effect of such deletion. What Rule 49 of the BCI Rules provides is that an Advocate shall not be a full-time salaried employee of any person, Government, firm, Corporation or concern so long as he continues to practise. The "employment" spoken of in Rule 49 does not cover the employment of an Advocate who has been solely or, in any case, predominantly employed to act and/or plead on behalf of his client in Courts of law. If a person has been engaged to act and/or plead in Court of law as an Advocate although by way of employment on terms of salary and other service conditions, such employment is not what is covered by Rule 49 as he continues to practise law but, on the other hand, if he is employed not mainly to act and/or plead in a Court of law, but to do other kinds of legal work, the prohibition in Rule 49 immediately comes into play and then he becomes a mere employee and ceases to be an Advocate. The bar contained in Rule 49 applies to an employment for work other than conduct of cases in Courts as an Advocate. In this view of the matter, the deletion of the second and third paragraphs by the Resolution dated 22.06.2001 has not materially altered the position insofar as Advocates who have been employed by the State Government or the Central Government to conduct civil and criminal cases on their behalf in the Courts are concerned.

99. What we have said above gets fortified by Rule 43 of the BCI Rules. Rule 43 provides that an Advocate, who has taken a full-time service or part-time service inconsistent with his practising as an Advocate, shall send a declaration to that effect to the respective State Bar Council within the time specified therein and any default in that regard may entail suspension of the right to practice. In other words, if full-time service or part-time service taken by an Advocate is consistent with his practising as an Advocate, no such declaration is necessary. The factum of employment is not material but the key aspect is whether such employment is consistent with his practising as an Advocate or, in other words, whether pursuant to such employment, he continues to act and/or plead in the Courts. If the answer is yes, then despite employment he continues to be an Advocate. On the other hand, if the answer is in the negative, he ceases to be an Advocate.

102. As regards construction of the expression, "if he has been for not less than seven years an Advocate" in Article 233(2) of the Constitution, we think Mr. Prashant Bhushan was right in his submission that this expression means seven years as an Advocate immediately preceding the application and not seven years any time in the past. This is clear by use of "has been". The present perfect continuous tense is used for a position which began at sometime in the past and is still continuing. Therefore, one of the essential requirements articulated by the above expression in Article 233(2) is that such person must with requisite period be continuing as an Advocate on the date of application."

11. In Dheeraj Mors case (supra), the issue considered by the Hon'ble Supreme Court was on the eligibility of members of the Subordinate Judicial Services for appointment as District Judge as against the quota reserved by way of direct recruitment. The Hon'ble Supreme Court again analysed the provisions of the Article 233 of the Constitution of India, the Act, 1967, the Rules formulated by the Bar Council, and also the precedent decisions. The relevant paragraphs of the judgment rendered by the Hon'ble Justice Sri Arun Mishra speaking for himself and Hon'ble Justice Sri Vineet Saran read as under:

"13. Article 233(2) starts with a negative stipulation that a person who is not already in the service of the Union or the State, shall be eligible only to be appointed as District Judge if he has been an Advocate or a pleader for not less than 7 years and is recommended by the High Court for appointment. The expression "in the service of the Union or of the State" has, been interpreted by this Court to mean the judicial service. A person from judicial service can be appointed as a District Judge. However, Article 233(2) provides that a person who is not in the service of the Union, shall be eligible only if he has been in practice, as an Advocate or a pleader for 7 years; meaning thereby, persons who are in service are distinguished category from the incumbent who can be appointed as District Judge on 7 years' practice as an Advocate or a pleader. Article 233(2) nowhere provides eligibility of in-service candidates for consideration as a District Judge concerning a post requiring 7 years' practice as an Advocate or a pleader. Requirement of 7 years' experience for Advocate or pleader is qualified with a rider that he should not be in the service of the Union or the State. Article 233 provides two sources of recruitment, one from judicial service and the other from Advocates or Pleaders. There are two separate streams provided; one is for persons in judicial service, and the other is for those not in judicial service of the Union or the State and have practised for seven years. The expression "in service of the Union or the State" has been interpreted in Chandra Mohan [Chandra Mohan v. State of UP., (1967) 1 SCR 77 [LQ/SC/1966/148] : AIR 1966 SC 1987 [LQ/SC/1966/148] ], to mean judicial service, not any other service of the Union or the State. Thus, it is clear that the members of the judicial service alone are eligible for appointment as against the post of District Judge as the only mode provided for the appointment of in-service candidates is by way of promotion. They can stake their claim as per rules for promotion or merit promotion as the case may be. This Court has excluded the persons from the Indian Civil Service, the Provincial Judicial Service, or other Executive Services, before Independence, recruitment to the post of District Judge was provided from other services also. In Chandra Mohan [Chandra Mohan v. State of U.P., (supra)], this Court held that no person from the Executive Service can be promoted as District Judge. There is separation of the judiciary in terms of Article 50 of the Constitution of India. It mandates the State to take steps to separate the judiciary from the executive in the public services of the State. Article 50 is extracted hereunder:

"50. Separation of judiciary from executive.- The State shall take steps to separate the judiciary from the executive in the public services of the State."
14. Article 233(2) provides that if an Advocate or a pleader has to be appointed, he must have completed 7 years of practice. It is coupled with the condition in the opening part that the person should not be in service of the Union or State, which is the judicial service of the State. The person in judicial service is not eligible for being appointed as against the quota reserved for Advocates. Once he has joined the stream of service, he ceases to be an Advocate. The requirement of 7 years of minimum experience has to be considered as the practising Advocate as on the cutoff date, the phrase used is a continuous state of affair from the past. The context "has been in practice" in which it has been used, it is apparent that the provisions refer to a person who has been an Advocate or pleader not only on the cut-off date but continues to be so at the time of appointment.

29. The recruitment from the Bar also has a purpose behind it. The practising Advocates are recruited not only in the higher judiciary but in the High Court and Supreme Court as well. There is a stream (of appointment) for in-service candidates of higher judiciary in the High Court and another stream clearly earmarked for the Bar. The members of the Bar also become experts in their field and gain expertise and have the experience of appearing in various Courts. Thus, not only in the higher judiciary, in-service candidates of subordinate judiciary are given the opportunity as against 75 per cent to be appointed by way of promotion as provided in All India Judges Assn. case [All India Judges Assn. (3) v. Union of India, 2002 (3) ALD 39 (SC) [LQ/SC/2001/358] : (2002) 4 SCC 247 [LQ/SC/2001/358] : 2002 SCC (L&S) 508] and the members of the Bar are given the opportunity as against 25 per cent of the post having 7 years' standing at Bar.

30. The makers of the Constitution visualised and the law administered in the country for the last seven decades clearly reveals that the aforesaid modes of recruitment and two separate sources, one from in-service and other from the Bar, are recognised. We do not find even a single decision supporting the cause espoused on behalf of candidates, who are in judicial service, to stake their claim as against the posts reserved for Advocates/Pleaders. In all the cases right from beginning from Rameshwar Dayal [Rameshwar Dayal v. State of Punjab, (1961) 2 SCR 874 [LQ/SC/1960/308] : AIR 1961 SC 816 [LQ/SC/1960/308] ], to date, a dichotomy has been maintained, and we find absolutely no room to entertain submission of discrimination based on Articles 14 and 16.

45. In view of the aforesaid discussion, we are of the opinion that for direct recruitment as District Judge as against the quota fixed for the Advocates/Pleaders, incumbent has to be practising Advocate and must be in practice as on the cut-off date and at the time of appointment he must not be in judicial service or other services of the Union or State. For constituting experience of 7 years of practice as Advocate, experience obtained in judicial service cannot be equated/combined and Advocate/pleader should be in practice in the immediate past for 7 years and must be in practice while applying on the cutoff date fixed under the rules and should be in practice as an Advocate on the date of appointment. The purpose is recruitment from Bar of a practising Advocate having minimum 7 years' experience.

47.3. Under Article 232(2), an Advocate or a pleader with 7 years of practice can be appointed as District Judge by way of direct recruitment in case he is not already in the judicial service of the Union or a State.

47.4. For the purpose of Article 233(2), an Advocate has to be continuing in practice for not less than 7 years as on the cut-off date and at the time of appointment as District Judge. Members of judicial service having 7 years' experience of practice before they have joined the service or having combined experience of 7 years as lawyer and member of judiciary, are not eligible to apply for direct recruitment as a District Judge."

12. In the concurrent judgment rendered by the Hon'ble Justice Sri S. Ravindra Bhat, the learned Judge observed as under:

"27. In High Court of P&H v. State of Punjab [High Court of P&H v. State of Punjab, (2019) 12 SCC 496 [LQ/SC/2018/1279 ;] : (2020) 1 SCC (L&S) 579] [Civil Appeal Nos. 5518-23 of 2017, decided on 03.10.2018] the question which arose was with respect to inter se seniority dispute between three streams of Punjab Superior Judicial Service i.e., 50 percent by promotion based on merit-cum-seniority, 25 per cent by limited departmental competitive examination and remaining 25 per cent to be filled by direct recruitment from amongst eligible Advocates. The facts indicate that the All India Judges Assn. [All India Judges Assn. (3) v. Union of India, (2002) 4 SCC 247 [LQ/SC/2001/358] : 2002 SCC (L&S) 508], (2002) decision had been implemented, and seniority is being maintained as directed.

34. In P. Ramakrishnam Raju v. Union of India [P. Ramakrishnam Raju v. Union of India,2014 (4) ALD 113 (SC) [LQ/SC/2014/351] : (2014) 12 SCC 1 [LQ/SC/2014/351] : (2014) 3 SCC (L&S) 636], this Court has observed that (at SCC Pp. 8-9, Para 19) experience and knowledge gained by a successful lawyer at the Bar can never be considered to be less important from any point of view vis-à-vis the experience gained by a judicial officer. If service of a judicial officer is counted for fixation of pension, there is no valid reason as to why the experience at the Bar cannot be treated as equivalent for the same purpose. In State (NCT of Delhi) v. All India Young Lawyers Assn. [State (NCT of Delhi) v. All India Young Lawyers Assn., (2009) 14 SCC 49 [LQ/SC/2009/205] : (2010) 1 SCC (L&S) 312], this Court has directed that a certain number of years as an Advocate to be added to the judicial service for pension. Thus, in our opinion, experience as an Advocate is also important, and they cannot be deprived of their quota, which is kept at 25 per cent only in the Higher Judicial Service.

35. It was submitted that ultimately the appointment of the Bar member is also made under Article 233(1). In State of Assam v. Kuseswar Saikia [State of Assam v. Kuseswar Saikia, (1969) 3 SCC 505 [LQ/SC/1969/424] : AIR 1970 SC 1616 [LQ/SC/1969/424] ], this Court observed that both appointment and promotion are included in Article 233(1). Following observations have been made : (SCC P. 509, Paras 5-6)

"5. The reading of the article by the High Court [Kuseswar Saikia v. State of Assam, AIR 1969 Assam & Ngld. 128], is, with respect, contrary to the grammar and punctuation of the article. The learned Chief Justice seems to think that the expression "promotion of governs "District Judges" ignoring the comma that follows the word "of. The article, if suitably expanded, reads as under:

'Appointments of persons to be, and the posting and promotion of (persons to be), District Judges, etc'
6. It means that appointment as well as promotion of persons to be District Judges is a matter for the Governor in consultation with the High Court and the expression "District Judge" includes an Additional District Judge and an Additional Sessions Judge. It must be remembered that District Judges may be directly appointed or may be promoted from the subordinate ranks of the judiciary. The article is intended to take care of both. It concerns initial appointment and initial promotion of persons to be either District Judges or any of the categories included in it."

The decision is of no avail as the question in the present case is different. Though the appointment is made under Article 233(1), but the source and the channel for judicial officers is the promotion, and for the members of the Bar is by direct recruitment."

13. It is clear from the precedent decisions of the Hon'ble Supreme Court that unless a person is practising as an Advocate continuously for seven years without any break till the date of the recruitment notification, he is not entitled to compete to the post of the District Judge (Entry Level).

14. Having regard to this legal position and looking at the facts of this case, it is clear that on 25.04.2017 the Aurora's Legal Science Institute, Nalgonda, issued appointment order to the petitioner and the said appointment order clearly says that he was appointed as Assistant Professor in law and was placed on probation for a period of two years from the date of appointment. He was placed in the scale of pay of Rs. 12,000-420-18,300 with a basic pay of Rs. 12,000/- and gross salary of Rs. 30,000/-. Paragraph No. 6 of the appointment order says that he was liable for transfer to any of the colleges under consortium basing on the necessity and requirement thereof. Thus, the terms of the appointment order clearly indicate that it is a permanent employment and petitioner was an employee of Aurora's Legal Science Institute, Nalgonda. On 12.10.2017 the relieving order of petitioner was passed by the employer, holding that he was relieved from the services of the institution from that date. The relieving order also records that from 23.09.2017 till the date of relieving he was not attending to the college and has not discharged any responsibilities in the capacity of Assistant Professor in Law. In the affidavit filed in support of the writ petition, petitioner admits that he was on the rolls of the college for a period of five months and seventeen days.

15. It is evident that petitioner is only trying to contend that though he was appointed as Assistant Professor, he was not actually working and the said appointment was only on paper since the college did not secure required approvals and recognition to run a law course and therefore, he was not involved in teaching activity.

16. Admittedly, petitioner was employed on regular basis and was on the rolls of employment of Aurora's Legal Science Institute. Rule 3 of the Rules, 1979, only enables to take up the assignment of teaching in law while practising as an Advocate so long as the hours during which he is so engaged in teaching of law do not exceed three hours in a day. In other words, what is contemplated by Rule 3 is a part-time assignment of teaching in law and not a regular employment, whereas, as noticed above, petitioner was working as a regular employee for five months and seventeen days.

17. As can be seen from the decisions of the Hon'ble Supreme Court in Dheeraj Mors case (supra) and Deepak Aggarwal's case (supra), the normal requirement is that a person must have seven years of continuous practice till the date of recruitment notification, to be eligible to the post of the District Judge (Entry Level). In Deepak Aggarwal's case (supra), the Hon'ble Supreme Court carved out an exception in favour of persons working as Public Prosecutor/Assistant Advocate General/District Attorney/Assistant District Attorney/Deputy Advocate General, on the ground that even though these officials were regular employees and are under the control of their employer, they discharge the duties and responsibilities as normally undertaken by an Advocate appearing for party and therefore, they also should be treated on par with any Advocate practising law. The Hon'ble Supreme Court made it clear that if a person has taken a full time service or a part time service inconsistent with his practice as an Advocate, he would not be eligible to be treated as having continuous practice in law to satisfy the requirement of Article 232 of the Constitution of India and the Service Rules governing the service.

18. Having regard to the law on subject and having regard to the fact that petitioner was working as Assistant Professor for five months seventeen days in regular employment, it cannot be said that petitioner was having continuous practice for seven years as an Advocate from the year 2013 till the date of notification for recruitment and he has a break in such practice in view of taking up employment in Aurora's Legal Science Institute, Nalgonda, in the capacity as Assistant Professor in law.

19. Therefore, we do not see any error in the decision taken by respondent Nos. 1 and 2 in rejecting the candidature of the petitioner for appointment to the post of District Judge (Entry Level), warranting interference of this Court. Accordingly, the writ petition is dismissed.

20. Miscellaneous petitions, pending if any, shall stand closed.