IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No.9974 of 2025 Decided on: 21.06.2025 ____________________________________________________________ Vishal Kashyap ...Petitioner Versus High Court of Himachal Pradesh ...Respondent Coram Hon’ble Mr. Justice G.S. Sandhawalia, Chief Justice Hon’ble Mr. Justice Ranjan Sharma, Judge 1Whether approved for reporting? For the petitioner: Mr. Parveen K. Chandel, Advocate. G.S. Sandhawalia, Chief Justice [Oral] Challenge in the present writ petition is to the rejection of petitioner’s candidature by this Court, on the ground that petitioner is holding the post of Law Officer in H.P. Board of School Education, Dharamshala. The counsel for petitioner has vehemently submitted that petitioner is working as such, by attending legal proceedings as per his responsibility and prior to that he had 12 years practice from the year 2008 till 17.06.2020 [Annexure P-8], when he was appointed as a Law Officer 1 Whether reporters of Local Papers may be allowed to see the judgment? - 2 - in the H.P. Board of School Education, Dharamshala. 2. Perusal of the order of appointment would also go on to show that his duties were only to attend the Court cases on behalf of the Board as and when required and look after the legal work and it is not that he had the authority to argue the matters as such, though an attempt has been made to show from various appearances before the Consumer Court and before the Himachal Pradesh Value Added Tax Appellate Tribunal, that the petitioner had been appearing on behalf of his employer. 3. Counsel for the petitioner has placed heavy reliance upon the judgment of Delhi High Court in Ashish Rastogi Versus Honble High Court of Delhi & Anr. WP(C) No.15705 of 2022, decided on 17.03.2023, wherein another similarly situated Law Officer with the Steel Authority of India had been granted the relief by holding that the petitioner’s duties were predominantly of an Advocate. The perusal of the said judgment would go on to show that there was heavy reliance upon various appearances as Law Officer in various authorities including arbitration matters and in - 3 - such circumstances, it was held that the requirement of Rule 9(2) of the Delhi Higher Judicial Services had been met. 4. The facts of the present case are different to the extent that as per the requisite Rule, which are the Himachal Pradesh Judicial Service Rules 2004, the method of recruitment and qualification and the age limit is provided in Rule 5 against the 25% of direct recruitment from amongst eligible Advocates on the basis of written examination and oral viva test, which has to be prescribed and conducted by this Court. The eligibility criteria regarding the practice is minimum period of 7 years, as on the last date fixed for receipt of application. The relevant portion reads as under :- “The following shall be the eligibility criteria, including qualifications, age limit and experience etc.:- (i) Citizen of India; (ii) Holder of a degree in Law as recognized by the Bar Council of India. (iii) Practicing Advocate at the Bar for a minimum period of seven years as on the last date fixed for receipt of the applications.” 5. It is not disputed that as per the advertisement dated 10.04.2025 [Annexure P-1], wherein - 4 - applications were invited from Members of the Bar belonging to the Scheduled Caste and OBC category for appointment of Additional District and Sessions Judge, in H.P. Judicial Service in the cadre of District Judges/Additional District Judges. There was also a clause that in case the reserved candidates are not eligible, then vacancy will be treated as un-reserved and filled in as un-reserved vacancy as per the proviso added below table under Rule 5 of the H.P. Judicial Service Rules, 2004. The last date for receipt of applications was dated 30.04.2025. 6. Clause 7 of the advertisement further provided that the requisite certificate has to be issued for minimum 7 years of actual practice by the concerned District Judge of the place of his/her practice or by the Registrar General of the concerned High Court. The format of certificate itself provided that 7 years practice has to be completed as on the last date fixed for receipt of the applications. The said clause reads as under :- “7. The application submitted by the Advocate for appointment to the District Judge/Additional District Judge shall be accompanied by a certificate of minimum seven years of actual practice at Bar issued by the concerned District Judge of the place of - 5 - his/her practice or by the Registrar General of the concerned High Court where he/she practices, as the case may be, in the following format:- “It is certified that Mr/Mrs……….. s/d/w/o ……………….. who has been enrolled as an Advocate vide ……..……. Is a practicing Advocate in the Courts of Civil and Criminal jurisdiction and he/she is in actual practice for a period of not less than seven years as on the last date fixed for receipt of the applications.” 7. It is not disputed that the petitioner was appointed as Law Officer way back on 17.06.2020, as per the appointment letter [Annexure P-8] as noticed above and he was never in actual practice as on the last date fixed for the receipt of the application, which was the requisite requirement as per the Rules and as per the advertisement form. He however, got a certificate from the Sirmour District Bar Association, Nahan on 21.04.2025, that he was enrolled with the Bar Council and is also a Member of the Sirmour District Bar Association since 25.10.2008 and that he had 12 years experience as an Advocate. The said certificate reads as under :- “SIRMOUR DISTRICT BAR ASSOCIATION NAHAN, DISTT. SIRMOUR H.P. 173001 Ref No-222 Dated: 21.04.2025 - 6 - Experience Certificate It is Certified that Mr. Vishal Kashyap S/o Sh. Hari Mohan Kashyap R/o Nahan Distt. Sirmour H.P has enrolled with the Bar Council of H.P. vide Enrollment No. HIM/326/ 2008 and also the member of Sirmour District Bar Association since 25th Oct, 2008. He has dealt with Civil & Criminal Cases at Distt. Court at Nahan H.P. and as such he is having 12 years experience as an advocate and has good moral character. I wish him every success in future. Sd/- President SIRMOUR DISTRICT BAR ASSOCIATION NAHAN, DISTT. SIRMOUR H.P.” 8. On the basis of the said certificate, the District and Sessions Judge, Sirmour issued him experience certificate dated 23.04.2025, wherein it was mentioned that he is in actual practice for not less than 7 years as on the last date fixed for the receipt of the application. The said certificate reads as under :- “Office of the District and Sessions Judge, Sirmour District at Nahan, H.P. No.DSJ/EC/NHN/Exp./2025:-2012 Dated:- 23-04-2025 EXPERIENCE CERTIFICATE It is certified that Shri Vishal Kashyap, S/o Shri Hari Mohan Kashyap, R/o H.No.246/8, Ranital Garden, Near Chhota Gate Nahan District Sirmaur H.P., on the basis of certificate issued on 21.04.2025, by the President, Bar Association, Nahan, has practiced as an Advocate vide enrollment - 7 - No.HIM/326/2008, at Nahan since 25.10.2008, in the Courts of Civil and Criminal Jurisdiction and he is in actual practice for a period of not less than seven years as on the last date fixed for receipt of the application. Dated: 22.04.2025. Sd/- Place: Nahan. District and Sessions Judge Sirmaur District at Nahan, H.P.” 9. Apparently the certificate issued by the District and Sessions Judge is incorrect as per the Rules and the terms of the advertisement, that 7 years of actual practice had to be seen on the cut-off date which was 30.04.2025. The petitioner having joined service on 17.06.2020, had never practiced for the last five years and therefore, never had the requisite 7 years practice on the cut-off date which was the requirement. 10. It is settled principal that the terms of the advertisement bound both the recruiting agency and the applicant and have a form of estoppel and law and nobody can wriggle out of it. The petitioner not having the requisite 7 years of practice on the cut-off date, thus, was never eligible as such and therefore, the claim that the rejection is bad, cannot be countenanced. The requirement of 7 years is provided under Article - 8 - 223(2) of the Constitution of India and the same was the subject matter of consideration by the Apex Court in Dheeraj Mor Versus Hon’ble High Court of Delhi, AIR 2020 SC 1084. The relevant part of the judgment which provides that the practice should be in immediate past, reads as under :- “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 practicing 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 of 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 cut-off 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 practicing advocate having minimum 7 years’ experience. 46. In view of the aforesaid interpretation of Article 233, we find that rules debarring judicial officers from staking their claim as against the posts reserved for direct recruitment from bar are not ultra vires as rules are subservient to the provisions of the Constitution.” 11. The Apex Court in the said judgment repelled the argument that Judicial Officers who had 7 years practice before having been appointed, could - 9 - be considered for appointment against the post of Additional District Judge, by holding as under :- “(iv) 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. (v) The rules framed by the High Court prohibiting judicial service officers from staking claim to the post of District Judge against the posts reserved for Advocates by way of direct recruitment, cannot be said to be ultra vires and are in conformity with Articles 14, 16 and 233 of the Constitution of India.” 12. The provisions of Article 223(2) of the Constitution of India talks about a person who is not already in service of the Union or the State, shall only be eligible to be appointed as a District Judge, apart from the fact that he has to have not less than 7 years as advocate or a pleader. The concurring view by Justice S. Ravindra Bhat in Dheeraj Mor’s case, also noticed this aspect and in Para 38, it was held as under :- “38. In the light of the foregoing discussion, it is held that under Article 233, a judicial officer, regardless of her or his previous experience as an Advocate with seven years’ practice cannot apply, and compete for appointment to any vacancy in the post of - 10 - District Judge; her or his chance to occupy that post would be through promotion, in accordance with Rules framed under Article 234 and proviso to Article 309 of the Constitution of India.” 13. In such circumstances, we are of the considered opinion that the petitioner having opted out of practice way back in the year 2020, now cannot claim that he had 7 years minimum practice on the cut-off date i.e. 30.04.2025 and therefore, the rejection by this Court of his application does not suffers from any infirmity which would warrant interference. Accordingly, the writ petition is dismissed. Pending miscellaneous application(s), if any, shall also stand disposed of. - (G.S. Sandhawalia) Chief Justice (Ranjan Sharma) Judge June 21, 2025 [Chiranjeev/Bhardwaj]