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IN THE HIGH COURT OF JUDICATURE AT HYDERABAD
FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH

W.P. No. OF 2017

BETWEEN:
1. U.D. Jai Bhima Rao, S/o.U.K. Rao
Aged about 43 years, Occ : Advocate
R/o.H.No.13-5-431/5/C1, Tallagadda
Hyderabad.

2. M.Chalapathi, S/o.M.Kotaiah
Aged 46 years, Occ : Advocate
R/o.H.No.38-16-103/C, Shivanagar Colony
Sainikpuri X Roads
Secunderabad 500 094.

3. T.V.Ramesh, S/o.T.V.Ramana
Aged 42 years, Occ : Advocate
R/o.H.No.4-6-355/A/1, Esamia Bazar
Koti, Hyderabad 500 027. . . . . . . PETITIONERS

A N D

1. Union of India, Rept., by its Secretary


to the Honorable President of India, New Delhi.
2. High Court of Judicature at Hyderabad for the
State of Telangana And the State of Andhra Pradesh, Rep., by
Its Registrar General, High Court Buildings, Hyderabad.

3. Mr. Justice D.V.S.S. Somayajulu,


Judge of High Court of Judicature at Hyderabad
For the State of Telangana and The state of Andhra Pradesh.
Hyderabad.
. . . . . . . . . RESPONDENTS

AFFIDAVIT OF THE PETITIONER.

I, U.D. Jai Bhima Rao, S/o.U.K.Rao, aged 43 years, Occ: Advocate,

R/o.H.No.13-5-431/5/C1, Tallagadda, Hyderabad, do hereby solemnly affirm and state

on oath as follows:

1. I am the petitioner herein as such I am well acquainted with the facts of the case.

I am also authorized to file this affidavit on behalf of other petitioners, as my interest

and the interest of the other petitioners is one and the same.

2. I submit that, this writ petition is being filed challenging the appointment of

Respondent No.3 as Additional Judge of High Court of Judicature at Hyderabad for the
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State of Telangana and the State of Andhra Pradesh in the year 2017 as illegal, arbitrary

and violative of Article 217(2) of the Constitution of India, and consequently direct the

respondent No.3 to quit the Office of the Additional Judge of the High Court at

Hyderabad as he is not entitled to hold the same.

3. I submit that, I am a practicing advocate at the High Court of Judicature at

Hyderabad and other courts also. I worked under the junior ship of renowned

Advocates Late Sri K. Bala Gopal & Senior Counsel Late Sri Bojja Tarakam. The

Respondent No.3 is working as an Additional Judge of High Court of Judicature at

Hyderabad.

While so it has come to my knowledge that, the 3rd respondent is not qualified for

appointment as an Additional Judge of High Court, as he has not been an advocate for at

least ten years in High Court of Judicature at Hyderabad or of two or more such Courts

in succession or as he did not hold Judicial office for at least ten years in the territory of

India as required under Article 217(2) of the Constitution of India.

4. I submit that, Article 217 of the Constitution of India, reads as follows:

217. Appointment and Conditions of the office of a Judge of a High Court: (1) Every

Judge of a High Court shall be appointed by the President by warrant under his hand

and seal after consultation with the Chief Justice of India, the Governor of the State,

and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice

of the High Court, and [shall hold office, in the case of an additional or acting Judge, as

provided in Article 224, and in any other case, until he attains the age of [Sixty-two

years]:

Provided that :-

(a) a Judge may, by writing under his hand addressed to the president, resign his
office;
(b) a Judge may be removed from his office by the President in the manner
provided in clause (4) of Article 124 for the removal of a Judge of the
Supreme Court;
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(c) the office of a Judge shall be vacated by his being appointed by the President
to be a Judge of the Supreme Court or by his being transferred by the
President to any other High Court within the territory of India.
(2). A person shall not be qualified for appointment as a Judge of a High Court
unless he is a citizen of India and -
(a) has for at least ten years held a judicial office in the territory of India; or
(b) has for at least ten years been an advocate of a High Court or of two or more
such Courts in succession.
Explanation:- For the purpose of this clause-
[(a) in computing the period during which a person has held judicial office in the
territory of India, there shall be included any period, after he has held any
judicial office, during which the person has been an advocate of a High Court
or has held the office of a member of tribunal or any post, under the Union or a
State, requiring special knowledge of law;]

[(aa)] in computing the period during which a person has been an advocate of a
High Court, there shall be included any period during which the person [has
held judicial office or the office of a member of a tribunal or any post, under
the Union or a State, requiring special knowledge of law] after he became an
advocate;
(b) in computing the period during which a person has held judicial office in the
territory of India or been an advocate of a High Court, there shall be included
any period before the commencement of this Constitution during which he
has held judicial office in any area which was comprised before the fifteenth
day of August 1947, within India as defined by the Government of India Act,
1935, or has been an advocate of any High court in any such area, as the
case may be.
(3) If any question arises as to the age of Judge of High Court, the question shall be
decided by the President after consultation with the Chief Justice of India and the
decision of the President shall be final.

5. That the respondent No.3 was an advocate from Visakhapatnam mofussil Bar in
Andhra Pradesh. He was neither a member of A.P High Court Advocates Association
nor a member of Telangana High Court Advocates Association. No Computer code
number was generated in the name of the Respondent No.3 which entitles him to file
cases in High Court. So the respondent No.3 was not even eligible to file cases in his
name.
The Honorable Supreme Court in the case of Kumar Padma Prasad Vs. Union of
India & Others reported in 1992 AIR 1213 held as follows:
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The High Court Judges are appointed from two sources, members of the Bar
and from amongst the persons who have held Judicial Office for not less than ten
years.
As the Respondent No.3 was not the member of the Bar of High Court at
Hyderabad or any other High Court, he is not eligible to be appointed as Judge of High
Court.
6. I submit that, there has been a contravention of Article 217 (2) of the
Constitution of India.
Section 8(1) of the 1926 Act which says about enrolment of Advocates in High
court has been repealed
The following provisions of Advocates Act, 1961 are relevant for the purpose of
this case:
The Advocates Act, 1961:
Section 2 (1) (a) advocate means an advocate entered in any roll under the
provisions of this Act;
The Advocates Act, 1961:
Section 50. Repeal of Certain enactments: 1).

2. On the date on which Chapter III comes into force, the following shall stand
repealed, namely:-
(a). . . . . . . . . .. . .
(b). . . . . . . . . . .
(c ) so much of section 8 of the Indian Bar Councils Act, 1926 (38 of 1926), as relates to
the admission and enrollment of legal practitioners;
3. . . . . . . . . .
4. . . . . . . . .
5. When the whole of this Act, has come into force

(a) the remaining provisions of the Acts referred to in this section which do not

stand repealed by virtue of any of the foregoing provisions of this section [except

section 1,3 and 36 of the Legal Practitioners Act, 1879 (18 of 1879) shall stand

repealed;

(b) the enactment specified in the schedule shall stand repealed to the extent

mentioned therein.

Section 51. Rule of Construction:- On and from the appointed day, references
in any enactment to an advocate enrolled by a High Court in any form of words shall be
construed as references to an advocate enrolled under this Act.
Legislative History:
Some enactments like the Official Trustees Act, 1913 refer to an advocate
enrolled by a High Court. Since under the new Act advocates will be enrolled by a
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State Bar Council and not by a High Court, this section has been added to remove any
difficulty in the interpretation of such enactments.

CERTIFICATE AND PLACE OF PRACTICE (VERIFICATION) RULES, 2015


Rule 14.6 Explanation: - An Advocate shall be deemed to be in practice, if he is
able to establish that he has appeared in any Court of law or has filed Vakalatnama even
in one case before any Court of Law/other forum in a year before these Rules came into
force.
The 1959 Bill, being a comprehensive measure, repealed the Indian Bar Councils Act,
1926, and all other laws on this subject.
Gazette of India, 19-11-1959, Part II section 2, Extraordinary Page 1186
2. Enrolment of Advocate:_- The Power and authority to enroll advocates has
been vested in the Bar Council, under the provisions of the Act. Therefore after the
commencement of the Act, the High Court has no jurisdiction to grant licence to
practice.
Mukram Ali v. Secretary, Bar Council of Assam, AIR 1980 NOC 146 (Gau)
12. Rolls: - Where the institution which had the responsibility to maintain the
rolls of advocates entitled to practice, itself ceased to exist, the rolls also ceased to exist
and the advocate cannot claim to continue on rolls or the consequent right to practice.
In this connection, I rely upon a decision of the Honorable Supreme Court of
India, in the case of Deepak Aggarwal Vs. Keshav Kaushik and others reported in
(2013)5 SCC 277, at Paras 14 & 15 is as follows:
14. Prior to the Indian Advocates Act, 1961, [the Indian] Bar Councils
Act, 1926 (for short the 1926 Act) dealt with the functions of the Bar
Council and the admission and enrolment of advocates. Section 2(1)(a)
of the 1926 Act had defined advocate means an advocate entered
in the roll of advocates of a High Court under the provisions of that
Act. Sections 8(1) of the 1926 Act provided as under:

8. Enrolment of advocates:- (1) No person shall be entitled as of right


to practice in any High Court, unless his name is entered in the roll of
the advocates of the High Court maintained under this Act:
Provided that nothing in this sub-section shall apply to any attorney of
High Court.
Section 9 of the 1926 Act dealt with qualification and admission of
advocates while Section 14 provided for right of advocates to practice.
15. On constitution of the State Bar Council under the Advocates
Act, 1961 (for short the 1961 Act), the relevant provisions of
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the 1926 Act stood repealed.
Hence the repealed Acts have no effect as per section 6 of The General
clauses Act,1897.

7. I submit that the Constitution is the highest authority. What is binding on the
courts is Article 217 of the Constitution of India which prescribes the qualification of
the Judges of the High court. It has repealed all other acts.
If any law that is inconsistent with the Constitution is invalid to the extent of its
inconsistency.
The Constitution is supreme. If any Act is in conflict with Article 217 of the
Constitution of India, the Constitution prevails.

8. I submit that, an advocate of High Court with 10 years of experience is eligible


for the post of the Judge of High court (as per Article 217(2)(b) of the Constitution of
India) as well as to the post of the Judge of Supreme Court of India (as per Article
124(3) (b) of the Constitution of India).
If the word Advocate is defined as advocate of High Court then any advocate
of sub-ordinate courts is eligible to the post of the Judge of Supreme Court of India as
per Article 124(3) (b) of the Constitution of India. Such an interpretation is blatantly
and palpably illegal and unjust.
I submit that Indian High Courts Act 1861 prescribed the qualifications of the
High Court Judges as follows: (Which is analogous to Article 217 of the Constitution of
India)
Qualification of judges of High court: A person could be appointed judge of High
court if he was either:
1. A Barrister of not less than five years standing;
2. A member of the Covenanted Civil service of at least 10 years standing who
had served as Zila judge for at least 3 years in that period;
3. A person having held judicial officer not inferior to that of principal Ameen or
judge of small cause court for at least 5 years;
4. A person who had been a pleader of a Sadar Court or a High Court for at least
10 years. (Equivalent to Article 217 (2)(b) of the Constitution of India)

Why 10 years of experience at High Court is required for an advocate to


become a Judge of High Court ?
Let us consider the reason of the case,
For nothing is law that is not reason
Sir John Powell.
Coggs v. Bernard.
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Necessity of 10 years Experience as an High Court Advocate

Experience is the mother of wisdom


- un known
The only source of knowledge is experience.
- Albert Einstein.
Experience is the teacher of all things
- Julius Ceasar.
To live means to experience through doing, feeling, thinking. Experience takes place
in time, so time is the ultimate scarce resource we have. Over the years, the content of
experience will determine the quality of life. Therefore one of the most essential
decisions any of us can make is about ones time allocated or invested.
- Mihaly Csikszent Mihalys.
The years teach much which days never know
- Ralph Waldo Emerson.
Explanation to Rule 14.6 of the Certificate and Place of Practice (Verification) Rules,
2015 is as follows:
Explanation: An Advocate shall be deemed to be in practice, if he is able to
establish that he has appeared in any court of law or has filed Vakalatnama even in one
case before any court of law/ other forum in a year before these rules came into force.
So, the question of Respondent No.3 filing 10 vakalats ( one vakalat per each
year) or 10 appearances (one appearance per each year) in any High Court does not
arise.
Experience as a subordinate court advocate is different from experience as an
High Court Advocate.
There is a lot of difference between the experience of the Advocate, practicing in
a Rural area before the Junior Civil Judge Court (i.e., the lowest court in the Judiciary)
and the experience of an advocate at High court. The difference is like that of
difference between the experience of the frog in the well and the frog in the sea.
The experience you have as a lawyer depend on where you practice and the kind
of law you practice. The language of the Higher Courts is English, without knowing the
vernacular language or local language it is very difficult to practice in lower courts. The
Judge of High court of any State can work in any High court, but other State judges
cannot work in lower courts, unless they know the local language. Advocates practicing
in junior civil judge courts do not know about writ petitions, company matters, civil
revision petitionsetc.., which are the regular cases before the High courts.
Judgment is a delicate thing and does not come overnight
- Peter Woo
The life of law has not been logic:
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It has been experience
- Olive Windell Holmes.

Importance of Sense of Place


Place is not only conceptualized as a location by the meanings, functionality and
qualities people assign to the social stuff that are there, place stratification is a
consequence of such identity creation: public or private, rich or poor, black or white,
safe or dangerous etc.,
Burns and Egdahi note that during the Second World War different nations,
behaved differently towards their Jewish populations. The Jewish populations of
Bulgaria and Denmark survived, whereas the majority of Jewish populations in Slovakia
and Hungary did not survive the holocaust. It is suggested that, these different national
behaviors vary according to the different collective consciousness between nations.
Basso. K. H (1996)
Wisdom sits in places:
Notes on a western Apache Landscape. In Feld. S Basso, K. H (Eds) senses of place
(PP.53-90) Santa Fe, New Mexico: School of American Research press.
9. If the interpretation of article 217(2)(b) of the constitution of India in the case of
Mahesh Chandra Gupta Vs Union of India and others reported in (2009) 8 SCC 273 is
accepted then any advocate with no experience is eligible to the post of judge of the
High Court ( as per Article 217(2)(b) of the Constitution of India), as well as to the
Supreme Court of India (as per Article 124(3)(b) of The Constitution of India).
I submit that, the law declared by their Lordships in the case of Prof. Chandra
Prakash Agarwal v. Chinturbuz Das Parikh and Others reported in (1970) 1 SCC 182
and in the case of Mahesh Chandra Gupta v. Union of India and Others reported in
(2009) 8 SCC 273 is blatantly and palpably illegal and unjust.
Legality is a matter of power but not justice.
The following are the illegalities of the above judgments.
Advocate = any person whose name is enrolled on the State Bar Council. Now it is
misinterpreted as an advocate of the High Court. (though it is repealed)
(Para 66 of Mahesh Chandra Gupta Case)

Standing = Standing connotes the years in which a person is entitled to practice, not
the actual years, put in by that person in practice (illegal interpretation)

Actual Practice: in the above said judgments the Honorable Courts interpreted the word
Actual Practice means right to practice. (Para No.66 of Mahesh
Chandra Gupta Case).
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In Para No.50 of Mahesh Chandra Gupta Case it is stated that, the word
standing connotes the years in which a person is entitled to practice and not the actual
years put in by a person in practice. Reference is given to Halsburys Laws of England,
4th Edn. Reissue, vol.3(1), Paras 351 and 394 of the Chapter under the heading
Barristers.
But actually what is written in Paras 351 & 394 is not extracted in the above said
judgment. Actually no such definition is found in the Halsburys Laws of England, 4th
Edn. Reissue, vol.3(1), Paras 351 and 394 of the Chapter under the heading Barristers.
It is illegal to say that the word standing connotes the years in which a
person is entitled to practice, not the actual years, put in by that person in practice. As
per section 220(3)(a) of The Government of India Act, 1935.

10. I submit that, the meaning given for plain meaning rule in P. Ramanath Aiyars
The Law Lexicon, Third Edition- 2012 is as follows: -
The plain meaning rule. The Principle that in the interpretation of a
Constitutional or Statutory provision, word should be given their ordinary and accepted
meaning. (CRAIG R. DUCAT Constitutional interpretation).
The meaning given for the word standing in Merriam Websters
Dictionary is length of service or experience especially as determining rank, pay, or
privilege.
The courts cannot change the accepted meaning of the word standing.
It is the function of a judge not to make but to declare the law according to the golden
mete-wand of the law and not by the crooked cord of discretion
Edmund Burke.
Let all laws be clear, uniform and precise : to interpret law is almost always to
corrupt them.
------Voltaire
It is wrong to interpret the word an advocate is similar to that of an advocate
of High court. It is also wrong to interpret that 10 years experience as an High court
advocate means not the actual years put in by that person in practice.
Judges cannot rewrite the Constitution. It is the function of the legislature. A
lengthy procedure is prescribed under Article 368 of the Constitution of India for
amendment of Article 217 of the Constitution of India.
In para 13 of Mahesh Chandra Gupta Case Vs Union of India and others reported in
(2009) 8 SCC 273 it is stated as follows :
At this stage, it may be mentioned vide Para No.9 of the judgment in
Prof.C.P.Agarwal case this court observed that the distinction between the words an
advocate under Article 233(2) and the words an advocate of a High Court, in Article
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217(2)(b) have no significance after coming into force of the Act, 1961 (the 1961,Act,
for short) which lays that, after the 1961, Act, there are only two classes of Advocates
i.e., Advocates and Senior Advocates entitled to practice. According to the Learned
Counsel the ratio of the judgment of this court in Prof. C.P. Agarwal case is per
incuriam.
It is illegal to say that there are only two classes of advocates. There are other
type of classes of advocates based on their place of practice.
The difference between a subordinate court advocate who is practicing in a rural
area before the court of a Junior Civil Judge in dealing with the nature and scope of
cases is entirely different from the advocate of High Court. This is another type of
different classes of advocates which can be understood naturally which need not be
mentioned in the Act.
The Judgment of Mahesh Chandra Gupta v. Union of India and Others, reported
in (2009) 8 SCC 273 is deemed to be overruled by the subsequent judgment in the case
of Deepak Aggarwal v. Keshav Kaushik and others reported in (2013) 5 SCC 277 Para
No.15 which is as follows:
Para No.15: on constitution of the State Bar Counsel under the Advocates Act,
1961(for short the 1961, Act), the relevant provisions of the 1926 Act stood repealed.

11. I submit that there has been a contravention of Article 217(2) of the constitution

of India. As an advocate, I have an interest to see that an unlawful claimant does not

usurp a public office.

I, have no other efficacious alternative remedy except to invoke the extraordinary

jurisdiction of this Honorable court under Article 226 of the Constitution of India.

12. I have not filed any writ, suit or other proceedings for this relief against the

respondents and no writ, suit or other Proceedings is pending before any other court or

Tribunal.

It is therefore prayed that this Honorable court may be pleased to issue any writ,

order or direction more particularly one in the nature of writ of Quo-Warranto declaring

the appointment of Respondent No.3 as an Additional Judge of High Court, in the year

2017 as illegal, arbitrary, violative of Article 217(2) of the Constitution of India and

consequently direct the respondent No.3 to quit the Office of the Additional Judge of
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High Court of Judicature at Hyderabad for The State of Telangana and The State of

Andhra Pradesh as he is not entitled to hold the same and to pass such other order or

orders as this Honorable Court deems fit and proper in the Circumstances of the case.

Interim Relief:

It is further prayed that this Honorable Court may be pleased to stay the

functioning of the Respondent No.3 as Additional Judge of High Court of Judicature at

Hyderabad for The State of Telangana and The State of Andhra Pradesh pending

disposal of the main Writ Petition and to pass such other order or orders as this

Honorable court deems fit and proper in the circumstances of this case.

Solemnly affirm and signed before me on this


day of November, 2017 at Hyderabad DEPONENT

ADVOCATE:: HYDERABAD

VERIFICATION STATEMENT

I, U.D. Jai Bhima Rao, S/o.U.K.Rao, aged 43 years, Occ: Advocate,

R/o.H.No.13-5-431/5/C1, Tallagadda, Hyderabad, do hereby verify and state that the

facts stated in the above affidavit filed in support of writ petition are true to the best of

my knowledge and belief and based on records and legal advice which I believe to be

true and correct.

Hence, Verified on this the day of November 2017 at Hyderabad.

ADVOCATE VERIFICANT/DEPONENT
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