- (1.) THE petitioner, who is serving as an Assistant Prosecuting Officer in District Varanasi, has filed this petition for a direction upon the respondents to provide one chance to the petitioner to appear at the Uttar Pradesh Higher Judicial Service Examination -2014 in the light of the judgment of the Supreme Court in Deepak Aggarwal Vs. Keshav Kaushik & Ors., 2013 5 SCC 277 even though he would be more than 45 years on 1 January 2015. The petitioner has also sought a direction upon the respondents to provide to him reservation available to dependents of freedom fighters and to grant relaxation of five years in the upper age limit as provided in Rule 12 of U.P. Higher Judicial Officers Service Rules, 1975 (hereinafter referred to as the 'Rules').
(2.) IT is stated that an advertisement was issued in the year 2007 for direct recruitment to the Uttar Pradesh Higher Judicial Service. The petitioner was not found eligible for the post as he was an Assistant Prosecuting Officer. The petitioner did not challenge this decision. However, one Sanjay Agarwal and some others challenged the decision taken not to consider Assistant Prosecuting Officers as eligible for direct recruitment pursuant to the advertisement issued for direct recruitment to the Uttar Pradesh Higher Judicial Service. These writ petitions were ultimately disposed of with the observation that those petitioners who were enrolled as Advocates and had practiced as such for seven years were eligible to appear in Uttar Pradesh Higher Judicial Service Examination and they cannot be disqualified only on the ground that they had been appointed as Assistant Prosecuting Officers. Accordingly, the circular dated 26 April 2007 issued by the Registrar General was quashed. In Special Leave to Appeal (Civil) Nos.17201 -17213/2007 filed by the High Court to assail this decision, the Supreme Court on 28 September 2007 issued notices and in the meantime stayed the operation of the order of the High Court. The aforesaid Special Leave Petitions were ultimately disposed of on 21 February 2014 in terms of the judgment rendered by the Supreme Court in Deepak Aggarwal .
(3.) AN advertisement inviting applications for direct recruitment to the Uttar Pradesh Higher Judicial Service has now been issued in 2014. The advertisement requires that the Advocates of not less than seven years standing as on 1 January 2015 who must have attained the age of 35 years and must not have attained the age of 45 years as on 1 January 2015 can apply. It also provides that the age limit shall be higher by three years in case of SC/ST/OBC candidates belonging to the State of Uttar Pradesh only. The petitioner is admittedly more than 45 years of age as on 1 January 2015 and, therefore, is not eligible to be considered for appointment under the said advertisement. Learned counsel for the petitioner has submitted that in Sanjay Agarwal Vs. State of U.P. and Anr., 2007 3 UPLBEC 2558, a Division Bench of this Court held that persons who have been enrolled as Advocates and have practiced as such for seven years are eligible to appear in the Uttar Pradesh Higher Judicial Service Examination and cannot be disqualified only on the ground that they are continuing as Assistant Prosecuting Officers but as this judgment of the Division Bench of High Court was stayed by the Supreme Court in Petitions for Special Leave to Appeal on 28 September 2007, which interim order continued to operate till the petitions were disposed of on 21 February 2014, one opportunity should at least be given to the petitioner to appear in the Uttar Pradesh Higher Judicial Service Examination 2014 even if the petitioner would be more than 45 years as on 1 January 2015 since he had been illegally denied an opportunity to appear at the earlier examinations when he was less than 45 years of age. Learned counsel for the petitioner further submitted that dependents of freedom fighters are entitled to relaxation of five years in the upper age limit and also the benefit of 2% horizontal reservation in accordance with the provisions of the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex -Servicemen) Act, 1993. Elaborating his submissions, learned counsel submitted that the decision not to permit the petitioner to appear in the 2007 Uttar Pradesh Higher Judicial Service Examination cannot be sustained in view of the judgment of this Court in Sanjay Agarwal and the petitioner did not apply pursuant to the advertisement issued in 2012 when he was eligible because the Special Leave Petitions were pending in the Supreme Court in which an interim order had been granted staying the operation of the judgment rendered in Sanjay Agarwal . Subsequently, the Special Leave Petitions were disposed of in the light of the judgment rendered by the Supreme Court in Deepak Aggarwal in which it was held that Assistant Public Prosecutors or Government Advocates on the rolls of State Bar Council are entitled to practice under the Advocates Act, 1971 and as such are eligible as they are covered by the expression 'Advocate'. It is, therefore, the submission of learned counsel for the petitioner that at least one opportunity should be provided to the petitioner for appearing in the Uttar Pradesh Higher Judicial Service Examination even if he is more than 45 years of age as on 1 January 2015 since he could not have applied earlier when he was eligible.;