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What is the meaning of the expression ‘the service’ in Article 233(2) of the Constitution of India? What is meant by ‘advocate’ or ‘pleader’ under Article 233(2)? Whether a District Attorney/Additional District Attorney/Public Prosecutor/Assistant Public Prosecutor/Assistant Advocate General, who is 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? = Assistant District Attorney, Public Prosecutor and Deputy Advocate General – recorded undisputed factual position that they were appearing on behalf of their respective States primarily in criminal/civil cases and their appointments were basically under the C.P.C. or Cr.P.C. That means their job has been to conduct cases on behalf of the State Government/C.B.I. in courts. Each one of them continued to be enrolled with the respective State Bar Council. In view of this factual position and the legal position that we have discussed above, can it be said that these appellants were ineligible for appointment to the office of Additional District and Sessions Judge? Our answer is in the negative .- did not cease to be advocate while working as Assistant District Attorney/Public Prosecutor/Deputy Advocate General, the period during which they have been working as such has to be considered as the period practising law.= We, accordingly, hold that the five private appellants (Respondent Nos. 9,12,13,15 and 18 in CWP No. 9157/2008 before the High Court) fulfilled the eligibility under Article 233(2) of the Constitution and Rule 11(b) of the HSJS Rules on the date of application. The impugned judgment as regards them is liable to be set aside and is set aside. 91. Appeals are allowed as above with no order as to costs.

REPORTABLE

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200701 high court (Photo credit: iambents)

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 561 OF 2013
(Arising out of SLP(C) No. 17463 of 2010)
Deepak Aggarwal …… Appellant

Vs.

Keshav Kaushik and others …… Respondents
WITH

CIVIL APPEAL NOS. 562-567 OF 2013
(Arising out of SLP(C) Nos. 17723-17728 of 2010)
CIVIL APPEAL NOS. 568-572 OF 2013
(Arising out of SLP(C) Nos. 17793-17797 of 2010)
CIVIL APPEAL NOS. 573-578 OF 2013
(Arising out of SLP(C) Nos. 17366-17371 of 2010)
CIVIL APPEAL NOS. 579-584 OF 2013
(Arising out of SLP(C) Nos. 21344-21349 of 2010)
CIVIL APPEAL NOS. 585-590 OF 2013
(Arising out of SLP(C) Nos. 23205-23210 of 2010)
CIVIL APPEAL NOS. 591-596 OF 2013
(Arising out of SLP(C) Nos. 32273-32278 of 2011)
JUDGMENT

R.M. LODHA, J.

Leave granted. What is the meaning of the expression ‘the
service’ in Article 233(2) of the Constitution of India? What is meant by
‘advocate’ or ‘pleader’ under Article 233(2)? Whether a District
Attorney/Additional District Attorney/Public Prosecutor/Assistant Public
Prosecutor/Assistant Advocate General, who is 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? These are the questions which have
been raised for consideration in this group of appeals.
2. The above questions and some other incidental questions in
these appeals have arisen from the judgment of the Punjab and Haryana High
Court delivered on 18.05.2010. The Division Bench of the High Court by the
above judgment disposed of 12 writ petitions wherein challenge was laid to
the selection and appointment of certain candidates to the post of
Additional District and Sessions Judge in the Haryana Superior Judicial
Service (HSJS) on diverse grounds. The High Court by its judgment disposed
of the writ petitions in the following manner :
“(A) Selections/appointments of respondents no. 9 – (Dinesh
Kumar Mittal), 12 (Rajesh Malhotra), 13 (Deepak Aggarwal), 15
(Chandra Shekhar) and 18 (Desh Raj Chalia) in CWP No. 9157 of
2008 (wherever they may be in other writ petitions) as
Additional District and Sessions Judges, are hereby quashed.
This direction shall, however, remain in abeyance for a period
of two months to enable the High Court to make alternative
arrangements;
(B) As a consequence of the quashment of the
selections/appointments of above named respondents, the
resultant five vacancies shall be filled up from the candidates
next in the order of merit, out of the panel prepared by the
Selection Committee;
(C) The appointment of Fast Track Court Judges by a process of
absorption after further examination and selection contained in
the recommendation of the Selection Committee dated 18.03.2008
is affirmed.
(D) Order dated 22.09.2008 (Annexure P-8 in CWP No. 17708 of
2008 rejecting the request of the High Court for de-
reservation of six vacancies (four Scheduled Caste, 2 Backward
Classes) is hereby quashed. Resultantly, the matter is remitted
back to the Government to re-consider the request of the High
Court for de-reservation in relaxation of rules by the competent
authority empowered under the Government instructions dated
7.9.2008 and Rule 31 of the Haryana Superior Judicial Service
Rules, 2007. The process of re-consideration shall be completed
within six weeks and the decision be communicated to the High
Court.
(E) If on such re-consideration, the State decides to de-
reserve the vacancies, candidates recommended by the High Court
vide its recommendation letter dated 25.4.2008, shall be
appointed.”

 
3. The appellants in this group of seven appeals are, Deepak
Aggarwal, Dinesh Kumar Mittal, Rajesh Malhotra, Chandra Shekhar and Desh
Raj Chalia, whose selections/appointments as Additional District and
Sessions Judges have been quashed by the High Court, and the Punjab and
Haryana High Court, Chandigarh on its administrative side.
4. On 18.05.2007, the Punjab and Haryana High Court, Chandigarh
through its Registrar General issued a notification inviting applications
for recruitment to certain posts of Additional District and Sessions Judge.
The written examinations were conducted pursuant to the said notification
wherein 64 candidates were recommended for the interview. After conducting
the interview, the High Court recommended the names of 16 candidates in
order of merit to the post of Additional District and Sessions Judge in the
State of Haryana by direct recruitment. Of the 16 candidates recommended by
the High Court, 5 were the appellants. At the time of appointment,
Deepak Aggarwal was working as Assistant District Attorney in Himachal
Pradesh; Chandra Shekhar and Desh Raj Chalia were working as Assistant
District Attorney in the State of Haryana, Rajesh Malhotra was working as
Public Prosecutor in the office of Central Bureau of Investigation and
Dinesh Kumar Mittal was working as Deputy Advocate General in the office of
the Advocate General, Punjab.
5. Based on the recommendation of the High Court, the State of
Haryana issued appointment orders. Some of the unsuccessful candidates
filed writ petitions before the High Court raising diverse grounds of
challenge. However, as indicated above, the appointments of five appellants
who were working as Assistant District Attorney/Public Prosecutor/Deputy
Advocate General have been quashed holding that they did not have the
requisite criteria to qualify for the recruitment as contemplated in
Article 233 of the Constitution and that some of the candidates did not
have requisite experience.
6. Article 233 of the Constitution of India provides for
appointment of District Judges. It reads as follows:

“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 a 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.”

 

7. Haryana Superior Judicial Service Rules, 2007 (for short, ‘HSJS
Rules’) regulate the appointment of subordinate judges in the State of
Haryana. Part III of these Rules deals with method of recruitment. Rules 5,
6 and 11 of the HSJS Rules are relevant for the purposes of consideration
of these appeals and they read as under :
“R.5. Recruitment to the Service shall be made by the
Governor,—
(i) by promotion from amongst the Haryana Civil Service
(Judicial Branch) in consultation with the High Court;
and
(ii) by direct recruitment from amongst eligible Advocates
on the recommendations of the High Court on the basis
of the written and viva voce test conducted by the
High Court.
R.6. (1) Recruitment to the Service shall be made,—
a) 50 per cent by promotion from amongst the Civil Judges
(Senior Division)/Chief Judicial Magistrates/Additional
Civil Judges (Senior Division) on the basis of principle
of merit-cum-seniority and passing a suitability test;
b) 25 per cent by promotion strictly on the basis of merit
through limited competitive examination of Civil Judges
(Senior Division) having not less than five years
qualifying service as Civil Judges (Senior
Division)/Chief Judicial Magistrates/Additional Civil
Judges (Senior Division); and who are not less than
thirty five years of age on the last date fixed for
submission of applications for taking up the limited
competitive examinations; and

c) 25 per cent of the posts shall be filled by direct
recruitment from amongst the eligible Advocates on the
basis of the written and viva voce test, conducted by the
High Court.

(2) The first and second post would go to category (a) (by
promotion on the basis of merit-cum-seniority), third post would
go to category (c) (direct recruitment from the bar) and fourth
post would go to category (b) (by limited competitive
examination) of rule 6, and so on.
R. 11. The qualifications for direct recruits shall be as
follows :
(a) must be a citizen of India;
(b) must have been duly enrolled as an Advocate and
has practiced for a period not less than seven
years;
(c) must have attained the age of thirty five years
and have not attained the age of forty five years
on the 1st day of January of the year in which
the applications for recruitment are invited.”

 
8. It will be convenient at this stage to refer to some other
provisions which have bearing in the matter and are relevant for the
purpose of these appeals. Section 2(u) of the Code of Criminal Procedure,
1973 (for short, ‘Cr.P.C.’) defines ‘Public Prosecutor’ to mean any person
appointed under Section 24 and includes any person acting under the
directions of a Public Prosecutor. Section 24 deals with ‘Public
Prosecutors’. It reads as under:

“24. Public Prosecutors,— (1) For every High Court, the Central
Government or the State Government shall, after consultation
with the High Court, appoint a Public Prosecutor and may also
appoint one or more Additional Public Prosecutors for conducting
in such court, any prosecution, appeal or other proceeding on
behalf of the Central Government or State Government, as the
case may be.
(2) The Central Government may appoint one or more Public
Prosecutors for the purpose of conducting any case or class of
cases in any district, or local area.
(3) For every district the State Government shall appoint a
Public Prosecutor and may also appoint one or more Additional
Public Prosecutors for the district:
Provided that the Public Prosecutor or Additional Public
Prosecutor appointed for one district may be appointed also to
be a Public Prosecutor or an Additional Public Prosecutor, as
the case may be, for another district.
(4) The District Magistrate shall, in consultation with the
Sessions Judge, prepare, a panel of names of persons, who are,
in his opinion fit to be appointed as Public Prosecutors or
Additional Public Prosecutors for the district.
(5) No person shall be appointed by the State Government as the
Public Prosecutor or Additional Public Prosecutor for the
district unless his name appears in the panel of names prepared
by the District Magistrate under sub-section (4).
(6) Notwithstanding anything contained in sub-section (5), where
in a State there exists a regular Cadre of Prosecuting Officers,
the State Government shall appoint a Public Prosecutor or an
Additional Public Prosecutor only from among the persons
constituting such Cadre:
Provided that where, in the opinion of the State Government, no
suitable person is available in such Cadre for such appointment
that Government may appoint a person as Public Prosecutor or
Additional Public Prosecutor, as the case may be, from the panel
of names prepared by the District Magistrate under sub-section
(4).
Explanation – For the purposes of this sub-section,–
(a) “regular Cadre of Prosecuting Officers” means a Cadre of
Prosecuting Officers which includes therein the post of a Public
Prosecutor, by whatever name called, and which provides for
promotion of Assistant Public Prosecutors, by whatever name
called, to that post;
(b) “Prosecuting Officer” means a person, by whatever name
called, appointed to perform the functions of a Public
Prosecutor, an Additional Public Prosecutor or an Assistant
Public Prosecutor under this Code.
(7) A person shall be eligible to be appointed as a Public
Prosecutor or an Additional Public Prosecutor under sub-section
(1) or sub-section (2) or sub-section (3) or sub-section (6),
only if he has been in practice as an advocate for not less than
seven years.
(8) The Central Government or the State Government may appoint,
for the purposes of any case or class of cases, a person who has
been in practice as an advocate for not less than ten years as a
Special Public Prosecutor:
“Provided that the Court may permit the victim to engage an
advocate of his choice to assist the prosecution under this
sub-section.”
(9) For the purposes of sub-section (7) and sub-section (8), the
period during which a person has been in practice, as a pleader,
or has rendered (whether before or after the commencement of
this Code) service as a Public Prosecutor or as an Additional
Public Prosecutor or Assistant Public Prosecutor or other
Prosecuting Officer, by whatever name called, shall be deemed to
be the period during which such person has been in practice as
an advocate.”

 

 
9. Some of the States have amended Section 24 Cr.P.C. Insofar as
Haryana is concerned, an explanation has been added to sub-section (6) of
Section 24 with effect from 29.11.1985 which provides that for the purpose
of sub-section (6), the persons constituting the Haryana State Prosecution
Legal Service (Group A) or Haryana State Prosecution Legal Service (Group
B) shall be deemed to be a regular Cadre of Prosecuting Officers.
10. Section 25 Cr.P.C deals with Assistant Public Prosecutors for
conducting prosecutions in the court of Magistrates. Section 25A was
brought in the Cr.P.C. by Act 25 of 2005. It, inter alia, provides that the
State Government may establish a Directorate of Prosecution consisting of a
Director of Prosecution and as many Deputy Directors of Prosecution as it
thinks fit. Sub-section (5) of Section 25A makes a provision that every
Public Prosecutor, Additional Public Prosecutor and Special Public
Prosecutor appointed by the State Government under sub-section (1) or under
sub-section (8) of Section 24 to conduct cases in the High Court shall be
subordinate to the Director of Prosecution. In terms of sub-section (6) of
Section 25A, every Public Prosecutor, Additional Public Prosecutor and
Special Public Prosecutor appointed by the State Government under sub-
section (3) or under sub-section (8) of Section 24 to conduct cases in
district courts and every Assistant Public Prosecutor appointed under sub-
section (1) of Section 25 shall be subordinate to the Deputy Director of
Prosecution. Sub-section (8), however, clarifies that the Advocate General
for the State while performing the functions of public prosecutor shall not
be covered by Section 25A.
11. Section 2(7) of the Code of Civil Procedure, 1908 (for short,
‘CPC’) defines ‘government pleader’. According to this provision,
‘government pleader’ includes any officer appointed by the State Government
to perform all or any of the functions expressly imposed by the CPC on the
government pleader and also any pleader acting under the directions of the
government pleader.
12. Section 2(15) CPC defines ‘pleader’ which means any person
entitled to appear and plead for another in court, and includes an
advocate, a vakil and an attorney of a High Court.
13. Prior to Indian Advocates Act, 1961, [The Indian] Bar Councils
Act, 1926 (for short, ‘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’ as meaning an advocate entered in
the roll of advocates of a High Court under the provisions of that Act.
14. Section 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 the High Court.”

 

15. Section 9 of the 1926 Act dealt with qualifications and
admission of advocates while Section 14 provided for right of advocates to
practice.
16. On constitution of the State Bar Council under the Advocates
Act, 1961 (for short, ‘1961 Act’), the relevant provisions of the 1926 Act
stood repealed. Section 17 of the 1961 Act provides that every State Bar
Council shall prepare and maintain a roll of advocates. It further provides
that no person shall be enrolled as an advocate on the roll of more than
one State Bar Council. Section 24 provides for the eligibility of the
persons who may be admitted as advocates on State roll. Inter alia, it
states that a person shall be qualified to be admitted as an advocate on a
State roll if he fulfills such other conditions as may be specified in the
rules made by the State Bar Council under Chapter III. Section 28 empowers
a State Bar Council to make rules to carry out the purposes of Chapter III.
Clause (d), sub-section (2) of Section 28 states that such rules may
provide for the conditions subject to which a person may be admitted as an
advocate on the State roll. Chapter IV of the 1961 Act deals with the
right to practice. This Chapter comprises of five sections. Section 29
provides that from the appointed day, there shall be only one class of
persons entitled to practice profession of law, namely, advocates. Section
30 provides for right of advocates to practice. Section 33 makes a
provision that except as otherwise provided in the Act or in any other law
for the time being in force, no person shall on or after the appointed day,
be entitled to practice in any event or before any authority or person
unless he is enrolled as advocate under the Act.
17. Section 49 gives power to the Bar Council of India to make
rules for discharging its functions and also to frame rules in respect of
the subjects enumerated in clauses (a) to (j). Clause (ah) deals with the
conditions subject to which an advocate shall have the right to practice
and the circumstances under which a person shall be deemed to practice as
an advocate in a court. The first proviso following the main Section
provides that no rules made with reference to clause (c) or (gg) shall
have effect unless they have been approved by the Chief Justice of India.
The second proviso provides that no rules made with reference to clause (e)
shall have effect unless they have been approved by the Central Government.
Pursuant to the power given under Section 49, the Bar Council of India has
framed the Bar Council of India Rules (for short, ‘BCI Rules’). Rule 43
provides that an advocate, who has taken a full-time service or part-time
service or engaged in business or any avocation inconsistent with his
practising as an advocate, shall send a declaration to that effect to the
respective State Bar Council within 90 days. On his failure to do so or in
the absence of sufficient cause for not doing so, he may face suspension of
licence to practice. Prior to 2001, Rule 49 of the BCI Rules read as
under :
“49. An advocate shall not be a full-time salaried employee of
any person, government, firm, corporation or concern, so long as
he continues to practice, and shall, on taking up any such
employment, intimate the fact to the Bar Council on whose roll
his name appears, and shall thereupon cease to practice as an
advocate so long as he continues in such employment.

Nothing in this rule shall apply to a Law Officer of the Central
Government or a State or of any Public Corporation or body
constituted by statute who is entitled to be enrolled under the
rules of his State Bar Council made under Section 28(2)(d) read
with Section 24(1)(e) of the Act despite his being a full time
salaried employee.
Law Officer for the purpose of this Rule means a person who is
so designated by the terms of his appointment and who, by the
said terms, is required to act and/or plead in courts on behalf
of his employer.
18. By resolution dated 22.06.2001, the Bar Council of India
deleted the second and third para of the above rule. The said resolution
was published in the Government Gazette on 13.10.2001. The Chief Justice of
India gave his consent to the said deletion on 23.04.2008. Rule 49 in its
present form, consequent on amendment, reads as under:
“An advocate shall not be a full-time salaried employee of any
person, government, firm, corporation or concern, so long as he
continues to practice, and shall, on taking up any employment,
intimate the fact to the Bar Council on whose roll his name
appears, and shall thereupon cease to practise as an advocate so
long as he continues in such employment”.

 

 
19. The High Court has held, and in our view rightly, that the
consent of Chief Justice of India was not needed because rule in respect of
eligibility is traceable to clause (ah). The amendment thus became
effective in any case on its publication in the Government Gazette on
13.10.2001.
20. The High Court while considering the issue relating to
eligibility of the appellants for selection and appointment under Article
233(2), dealt with Sections 17, 22, 24, 29 and 33 of the 1961 Act and Rule
49 of the BCI Rules and observed that an advocate could not be a full-time
salaried employee of any person, government, firm, corporation or concern
so long as he continues to practice.
21. The High Court referred to various decisions including
decisions of this Court in Mundrika Prasad Sinha v. State of Bihar[1],
Mukul Dalal and others v. Union of India and Others[2], Kumari Shrilekha
Vidyarthi and Others v. State of U.P. and Others[3], Chandra Mohan v. State
of U.P. and Others[4], Satya Narain Singh v. High Court of Judicature at
Allahabad and Others[5], Sushma Suri v. Government of National Capital
Territory of Delhi and Another[6], Satish Kumar Sharma v. Bar Council of
H.P.[7], Sunil Kumar Goyal v. Rajasthan Public Service Commission[8] and
finally held that Dinesh Kumar Mittal, Rajesh Malhotra, Deepak Aggarwal,
Chandra Shekhar and Desh Raj Chalia were ineligible at the time of their
appointment as Additional District and Sessions Judge. The Bench formulated
its opinion on account of the following :

“They were in regular government service with the Union or the
State. Their recruitment to the posts of Deputy Advocate
General, Assistant District Attorney’s/Prosecutors was pursuant
to their selection by the respective Public Service
Commission/Government. All of them were in the graded pay scale
and subjected to all rigors of service conditions of a
government servant known to service jurisprudence. We may not be
misunderstood to mean that the Law Officers as a genre are
ineligible for judicial appointment.
Disqualification/ineligibility is attracted only to such
category of Law Officers who opt for regular Government
employment. However, no such ineligibility is attached to the
other category of Law Officers who are practicing lawyers and
are engaged on behalf of the Government or any other
organization/authority, even on salary to appear on their behalf
either under any contractual arrangement or on case to case
basis, without subjecting themselves to the conditions of
regular government employment such as the Advocate General,
Additional Advocate General in the State, Assistant Solicitor
General or Central Government Standing counsel or any other Law
Officer engaged by various Government Corporations or otherwise
who are engaged to represent them in courts of law.”

22. The High Court also held that except Rajesh Malhotra, the other
four, namely, Dinesh Kumar Mittal, Deepak Aggarwal, Chandra Shekhar and
Desh Raj Chalia were having less than seven years of practice at the Bar
before their engagement as Assistant District Attorneys/Public Prosecutors.
23. Mr. P.P. Rao, learned senior counsel who led the arguments on
behalf of the appellants, argued that Article 233(2) of the Constitution is
a self-contained Code. Service of a Public Prosecutor or an Assistant
Public Prosecutor or a Government Pleader does not render a person
ineligible for appointment as a District Judge if he has been for not less
than seven years an advocate or a pleader. According to him, it is open
to the State to appoint a Government Pleader in terms of Section 2(7) of
C.P.C. for conducting civil cases and Public Prosecutors under Section 24
of Cr.P.C. for criminal cases on mutually agreed terms, either on a case to
case basis or piece-rate basis for each item of work done or on a tenure
basis or on a permanent basis. Though called ‘appointment’, it is in
reality and in substance an engagement of an advocate for conducting cases
in courts. Advocates with experience are only eligible for these posts and
even after appointment as Government Pleader or Public Prosecutor or
Assistant Public Prosecutor or Assistant District Attorney, their job is
exclusively or mainly to conduct cases as advocates in courts. The nature
of their functions remains the same. They are always Officers of the Court.
24. It was submitted by Mr. P.P. Rao that the 1961 Act and the BCI
Rules, including Rule 49 , must be read harmoniously with the relevant
provisions of C.P.C. and Cr.P.C. having regard to the object and scheme of
appointment of the Government Pleaders, Public Prosecutors, Assistant
Public Prosecutors or Assistant District Attorneys etc. He contended that
rule making power by Bar Council of India cannot be exercised inconsistent
with the provisions contained in CPC and Cr.P.C; it is not an overriding
power and the persons who are eligible in terms of Article 233(2) of the
Constitution cannot be made ineligible by a rule made by the Bar Council of
India. According to him, the meaning of the word, ‘advocate’ occurring in
Article 233(2) must be fixed and identified which the Constitution makers
had in mind. Neither the 1961 Act nor the BCI Rules framed thereunder can
curtail the meaning of the word ‘advocate’ that is understood under
Article 233(2) of the Constitution.
25. Mr. P.P. Rao, learned senior counsel submitted that it could
never be the intention of the Bar Council of India when it made Rule 49
that appointment of advocate by the Government for conducting its cases
in courts as an advocate on a full time salary basis would attract the bar
in Rule 49. The bar applies to employees engaged for work other than
conducting cases in courts as advocates. He suggested that in order to save
the operation of Rule 49, it needs to be read down and the test laid down
by this Court in Satish Kumar Sharma7 and Sushma Suri6 must be applied,
i.e. whether a person is engaged to act and/or plead in a court of law as
an advocate and not whether such person is engaged on terms of salary or
payment of remuneration. In his view, what is important is not the
employment but the functions that a Public Prosecutor or a Government
Pleader discharges.
26. The contention of Mr. P.P. Rao is that the BCI Rules cannot
override the operation of any law made by the Parliament, including the CPC
or the Cr.P.C., much less Article 233(2) of the Constitution which contains
the word ‘advocate’ having a definite meaning i.e., person enrolled as a
member of the Bar to conduct cases in courts. He highlighted the
consistent practice before the Constitution and after the Constitution of
the Government Pleaders and Public Prosecutors on regular or permanent
basis with fixed emoluments being appointed as District Judges by way of
direct recruitment in view of their experience in conducting government
cases. He submitted that to declare them ineligible would defeat the object
of recruitment underlying Article 233(2) of the Constitution.
27. Mr. A.K. Ganguli, learned senior counsel appearing in the
appeals preferred by Dinesh Kumar Mittal adopted the arguments of
Mr. P.P. Rao and further submitted that it is right to practice that
determines whether one is advocate or not and that is what must be
understood by the term ‘advocate’ occurring in Article 233(2) of the
Constitution.
28. Mr. B.H. Marlapalle, learned senior counsel for the appellant
Desh Raj Chalia, submitted that Article 233(2) provided two different
sources of appointment to the post of District Judge, namely, by promotion
from service and by nomination from the law practitioners with practice of
not less than seven-years. The requirement of practice for not less than
seven-years is only for the appointment by nomination. He relied upon
decisions of this Court in Rameshwar Dayal v. State of Punjab and
others[9], Chandra Mohan4 and Satya Narain Singh5. Learned senior counsel
argued that Section 24, Cr.P.C. is the source of power for appointment of
the Public Prosecutor/Additional Public Prosecutor either as part of the
regular service cadre or from the panel prepared by the District
Magistrate. The scheme of Section 24 Cr.P.C. cannot be allowed to be
defeated by Rule 49 of the BCI Rules as amended by the resolution dated
22.06.2001. Learned senior counsel submitted that a Public Prosecutor
appointed by State Government as a part of regular service cadre cannot be
excluded from the scheme of Section 30 of the 1961 Act just because he has
chosen to appear for the State Government. Any law practitioner/advocate
has the choice to restrict his practice. He heavily relied upon the
observations made by this Court in paragraphs 6, 10 and 11 of the decision
in Sushma Suri6 and submitted that principles laid down therein were fully
applicable to the appellant’s submission that he is eligible for being
selected by nomination to the post of District Judge from amongst the law
practitioners.
29. Mr. B.H. Marlapalle referred to various provisions of the 1961
Act and Rule 49 of the BCI Rules and submitted that any person who is a law
officer of the State/Central Government and who by the said term is
required to act and plead in a court on behalf of his employer is entitled
to be admitted as an advocate to the State roll. Rule 49, as amended by the
Bar Council of India, cannot be interpreted to mean that every Public
Prosecutor/Additional Public Prosecutor, who is appointed by the State
Government as a part of regular service cadre, ceases to be an advocate.
If a Public Prosecutor forming part of service cadre, ceases to be an
advocate then his tenure as a Public Prosecutor under Section 24, Cr.P.C.
would automatically come to an end. Such an interpretation of Rule 49 of
the BCI Rules would not be proper.
30. Learned senior counsel also challenged the finding recorded by
the High Court with regard to appellant Desh Raj Chalia that he did not
complete seven years of law practice. According to him, his tenure as
Assistant District Attorney was required to be counted for the purpose of
computing period of practice and the appellant had completed more than 11
years of law practice.
31. Mr. S.S. Ray, learned counsel appearing for one of the
appellants, argued that the amendment to Rule 49 in 2001 has not affected
the position of the appellant as an advocate in any manner and the judgment
of this Court in Sushma Suri6 is squarely applicable. Learned counsel
would submit that ‘advocate’ means any person who pleads for his client.
The word, ‘advocate’ is genus whereas expressions, Law Officer/Assistant
District Attorney/Public Prosecutor are species. They are covered within
the meaning of term ‘advocate’. Suspension of the licence or deleting the
name from the roll of advocates cannot exclude a Public Prosecutor or
Assistant District Attorney from the definition of word ‘advocate’. He
further argued that if Public Prosecutor and Assistant District Attorney
are taken out from the definition of ‘advocate’ then they cannot plead the
case before the court even on behalf of the Government. He submitted that
the provisions contained in CPC and Cr.P.C. should prevail over the BCI
Rules. With regard to interpretation of Article 233(2), he adopted the
arguments of Mr. P.P. Rao.
32. Mr. Raju Ramchandran, learned senior counsel appeared for the
High Court of Punjab and Haryana on administrative side. He submitted that
District Attorney, Public Prosecutor and Assistant Advocate General are in
essence lawyers. Even though Rule 49 was amended by the Bar Council of
India, yet under the amended rule District Attorneys, Public
Prosecutors/Assistant Advocate General continue to appear as advocates as
they continue to have their licence. Rule 49 per se does not bar them
from appearing before a court. Reference was made to the provisions of
Haryana State Prosecution Legal Service (Group ‘C’) Rules, 1979 to show
that the Government Pleader and Public Prosecutor may be fully engaged by
the Government but in essence they are lawyers representing the Government.
He submitted that High Court failed to notice the explanation to Section
24(6) and its interplay with Section 24(9) Cr.P.C. Learned senior counsel
suggested that the test enunciated in Sushma Suri6 , namely, whether he is
engaged to act or plead on behalf of the employer in a court of law as an
advocate should be applied to find out whether the private appellants
whose appointments have been cancelled met the prescribed eligibility or
not.
33. Learned senior counsel sought to distinguish the decision of
this Court in Mallaraddi H. Itagi & Ors. v. High Court of Karnataka by
highlighting that Karnataka Department of Prosecution and Government
Litigation Recruitment Rules, 1962 did not allow the Public Prosecutors to
appear as advocates before the Court; the candidates therein admitted that
they were government servants; and the candidates therein had surrendered
their licence.
34. A plea of estoppel was also raised on behalf of the High Court
and it was submitted that the writ petitioners were estopped from
challenging the selection process as they had taken a chance to get
selected and after having remained unsuccessful, they have now challenged
the appointment of successful candidates.
35. On the other hand, Mr. Prashant Bhushan, learned counsel for
the respondent – Keshav Kaushik (writ petitioner before the High Court) in
the appeal preferred by Deepak Aggarwal, referred to Article 233(2) of the
Constitution and submitted that in order to be eligible, the candidate
must not be in the service of Union or the State and must have been an
advocate for at least seven years. It was submitted that the expression,
“if he has been for not less than seven years an advocate” must be read to
mean seven years immediately preceding his appointment/ application. It
cannot mean any seven years any time in the past. If that interpretation
were to be accepted, it would mean that a person who is enrolled as an
advocate for seven years and thereafter took up a job for the last twenty
years would also become eligible for being appointed as District Judge.
This would defeat the object of the qualification prescribed in Article
233(2).
36. Mr. Prashant Bhushan contended that a Public Prosecutor being a
full time employee of the Government, ceases to be an advocate by virtue of
Rule 49 of the BCI Rules. The candidates whose appointment was challenged
were in full time employment of the Government; were liable to be
transferred and posted with the Government Companies as law officers and
they have several functions other than appearances in courts as Public
Prosecutors. Merely because one of the functions of these Public
Prosecutors is to appear in courts would not make them advocates and
eligible for appointment under Article 233 (2) of the Constitution. He
justified the view of the High Court.
37. Mr. P.S. Patwalia, learned senior counsel also arguing for
respondent no. 1 in the appeal by Chandra Shekhar, submitted that Rule 49
expressly debars a person from practising as an advocate on taking up
employment. Rule 43 of BCI Rules makes it imperative on any such person to
file a declaration within 90 days on taking up employment failing which the
State Bar Council can suspend the licence of such a person to practice. It
was submitted that full time employees have a limited right of appearance
before the courts by virtue of Section 24 Cr.P.C. and Section 2(7) C.P.C.
Such employees can only appear in briefs marked to them by State Government
for specified courts.
38. Chapter IV of the 1961, Act which deals with right to practice,
was referred to by the learned senior counsel, particularly, Sections 29 to
33, and it was submitted that on a conjoint reading of these provisions
with Rules 43 to 49 of the BCI Rules and Section 24 Cr.P.C. and Section
2(7) C.P.C., Additional District Attorney/Public Prosecutor/Assistant
Advocate General cannot be said to practice law. Reference was made to
the Resolution passed by Bar Council of India in this regard which provides
that if a Public Prosecutor/Additional District Attorney is a whole time
employee drawing regular salary, he will not be entitled to be enrolled as
an advocate.
39. In support of the above submissions, Mr. P.S. Patwalia relied
upon decision of this Court in Satish Kumar Sharma7 and a decision of
this Court in Mallaraddi H. Itagi. Reference was also made to the decision
of the Karnataka High Court in Mallaraddi H. Itagi from which the appeals
were preferred before this Court. Learned senior counsel submitted that the
view taken by Karnataka High Court and upheld by this Court is the view
which has been taken by various other high courts, namely, Kerala High
Court in K.R. Biju Babu v. High Court of Kerala & Another[10], Jammu and
Kashmir High Court in Gurjot Kaur and Others v. High Court of Jammu and
Kashmir and Another decided on 14.09.2010, Bombay High Court in Sudhakar
Govindrao Deshpande v. State of Maharashtra and Others[11], Allahabad High
Court in Akhilesh Kumar Misra and Others v. The High Court of Judicature at
Allahabad and Others[12] Rajasthan High Court in Pawan Kumar Vashistha v.
High Court of Judicature for Rajasthan, Jodhpur and Another decided on
21.02.2012.
40. Mr. P.S. Patwalia referred to Article 233(2) of the
Constitution and the decision of this Court in Chandra Mohan4 and
submitted that a person already employed in the executive service of a
State is ineligible to be appointed. He heavily relied upon paragraphs 49
and 50 of the impugned judgment and submitted that the findings returned by
the High Court were in accord with law.
41. On behalf of the respondents in the appeal by Dinesh Kumar
Mittal, it was submitted that Article 233(2) of the Constitution lays down
three essentials for appointment of a person to the post of District Judge
and all of them are mandatorily required to be fulfilled and are to be read
simultaneously. It was submitted that independence of judiciary is the
basic structure of the Constitution. The Public Prosecutors holding a
regular post in regular pay scale are government servants and they can not
be treated as ‘advocate’ within the meaning of Sections 24, 29 and 30 of
the 1961 Act read with Rule 49 of the BCI Rules. It was suggested that the
words “has been” in Article 233(2) must be read to mean the advocate or
pleader who continues to be so at the time of his appointment.
42. Article 233 of the Constitution makes provision for appointment
and qualification for District Judges. Under clause (1) of Article 233 no
special qualifications are laid down. The Governor can appoint a person who
is already in service of the Union or of the State as a District Judge in
consultation with the relevant High Court. Clause (2) of Article 233 lays
down three essentials for appointment of a person to the post of District
Judge; (i) a person shall not be in service of the Union or of the State;
(ii) he has been for not less than seven years an advocate or a pleader;
and (iii) his name is recommended by the relevant High Court for
appointment. In other words, as regards a person not already in service
what is required is that he should be an advocate or pleader of seven
years’ standing and that his name is recommended by the High Court for
appointment as District Judge. We have to find out what is the meaning of
the expression “the service” under Article 233 (2) of the Constitution.
The expression “the service” occurring in clause (2) of Article 233 came up
for consideration before a Constitution Bench of this Court in Chandra
Mohan4.
43. In the case of Chandra Mohan4 the facts were these: during
1961 and 1962, the Registrar of the Allahabad High Court called for
applications for recruitment with regard to ten vacancies in the Uttar
Pradesh Higher Judicial Service from Barristers, Advocates, Vakils and
Pleaders of more than seven years’ standing and from judicial officers. The
Selection Committee, constituted under the Rules, selected six candidates
for appointment to the said service. The three of the selected candidates
were advocates and three were judicial officers. The Selection Committee
sent two lists, one comprising the names of three advocates and the other
comprising the names of three judicial officers to the High Court. Chandra
Mohan, who was Member of U.P. Civil Services (Judicial Branch) and who was
at that time acting as a District Judge, and some other officers who were
similarly situated, filed writ petitions in the High Court of Allahabad
under Article 226 challenging the selection of the six candidates for
appointment to the U.P. Higher Judicial Service. The matter was heard by
the Division Bench. The members of the Bench agreed that selection from
the Bar was good but as regards selection from the cadre of judicial
officers, there was difference of opinion on the aspect of non-issuance of
notification under Article 237 of the Constitution. The matter was referred
to a third Judge who agreed with one of the Judges who held that selection
from the judicial officers was also good. Thus, the writ petitions were
dismissed. The High Court on the application for certificate to appeal to
this Court certified the case a fit one for appeal, consequently, the
appeal was filed. As there was some debate on the scope of the certificate
granted by the High Court, this Court also granted Special Leave to Appeal
against the order of the High Court. Diverse arguments were advanced on
behalf of the appellants before this Court. While dealing with the question
whether the Governor can directly appoint persons from services other than
the judicial service as District Judges in consultation with the High Court
and on a further question whether the Governor can appoint judicial
officers as District Judges, this Court dealt with Articles 233, 234, 236
and 237 of the Constitution and observed in paragraph 15 of the Report
(pgs. 1993-94) as follows:
“The gist of the said provisions may be stated thus.
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. There are two sources of recruitment namely (i)
service of the Union or of the State, and (ii) members of the
Bar. The said Judges from the first source are appointed in
consultation with the High Court and those from the second
source are appointed on the recommendation of the High Court.
But in the case of appointments of persons to the judicial
service other than as district Judges they will be made by the
Governor of the State in accordance with rules framed by him in
consultation with the High Court and the Public Service
Commission. But the High Court has control over all the district
Courts and Courts subordinate thereto, subject to certain
prescribed limitations.”

 
This Court then in paragraphs 16 and 17 (pg. 1994) of the Report observed
as follows:

“16. So far there is no dispute. But the real conflict rests
on the question whether the Governor can appoint as district
Judges persons from services other than the judicial service;
that is to say, can he appoint a person who is in the police,
excise, revenue or such other service as a district Judge? The
acceptance of this position would take us back to the pre-
independence days and that too to the conditions prevailing in
the Princely States. In the Princely States one used to come
across appointments to the judicial service from police and
other departments. This would also cut across the well-knit
scheme of the Constitution and the principle underlying it,
namely, the judiciary shall be an independent service.
Doubtless if Art. 233(1) stood alone, it may be argued that the
Governor may appoint any person as a district Judge, whether
legally qualified or not, if he belongs to any service under
the State. But Art. 233(1) is nothing more than a declaration
of the general power of the Governor in the matter of
appointment of district Judges. It does not lay down the
qualifications of the candidates to be appointed or denote the
sources from which the recruitment has to be made. But the
sources of recruitment are indicated in Cl (2) thereof. Under
Cl. (2) of Art. 233 two sources are given, namely, (i) persons
in the service of the Union or of the State, and (ii) advocate
or pleader. Can it be said that in the context of Ch. VI of
Part VI of the Constitution “the service of the Union or of the
State” means any service of the Union or of the State or does
it mean the judicial service of the Union or of the State? The
setting, viz., the chapter dealing with subordinate Courts, in
which the expression “the service” appears indicates that the
service mentioned therein is the service pertaining to Courts.
That apart, Art. 236(2) defines the expression “judicial
service” to mean a service consisting exclusively of persons
intended to fill the post of district Judge and other civil
judicial posts inferior to the post of district Judge. If this
definition, instead of appearing in Art. 236, is placed as a
clause before Art. 233(2), there cannot be any dispute that
“the service” in Art. 233(2) can only mean the judicial
service. The circumstance that the definition of “judicial
service” finds a place in a subsequent Article does not
necessarily lead to a contrary conclusion. The fact that in
Article 233(2) the expression “the service” is used whereas in
Arts. 234 and 235 the expression “judicial service” is found is
not decisive of the question whether the expression “the
service” in Art. 233(2) must be something other than the
judicial service, for, the entire chapter is dealing with the
judicial service. The definition is exhaustive of the service.
Two expressions in the definition bring out the idea that the
judicial service consists of hierarchy of judicial officers
starting from the lowest and ending with district Judges. The
expressions “exclusively” and “intended” emphasise the fact
that the judicial service consists only of persons intended to
fill up the post of district Judges and other civil judicial
posts and that is the exclusive service of judicial officers.
Having defined “judicial service” in exclusive terms, having
provided for appointments to that service and having entrusted
the control of the said service to the care of the High Court,
the makers of the Constitution would not have conferred a
blanket power on the Governor to appoint any person from any
service as a district Judge.
17. Reliance is placed upon the decision of this Court in
Rameshwar Dayal v. State of Punjab, (AIR 1961 SC 816), in
support of the contention that “the service” in Art. 233(2)
means any service under the State. The question in that case
was, whether a person whose name was on the roll of advocates
of the East Punjab High Court could be appointed as a district
Judge. In the course of the judgment S.K. Das, J., speaking for
the Court, observed :
“Article 233 is a self-contained provision regarding the
appointment of District Judges. As to a person who is
already in the service of the Union or of the State, no
special qualifications are laid down and under Cl. (1) the
Governor can appoint such a person as a district Judge in
consultation with the relevant High Court. As to a person
not already in service, a qualification is laid down in Cl.
(2) and all that is required is that he should be an
advocate or pleader of seven years’ standing.”
This passage is nothing more than a summary of the relevant
provisions. The question whether “the service” in Art. 233 (2)
is any service of the Union or of the State did not arise for
consideration in that case nor did the Court express any
opinion thereon.”
Explaining the meaning of the expression, ‘the service’, this is what this
Court said in paragraph 20 of the Report (Pg. 1995) in Chandra Mohan4.
“……….Though S. 254(1) of the said Act was couched in general
terms similar to those contained in Art. 233 (1) of the
Constitution, the said rules did not empower him to appoint to
the reserved post of district Judge a person belonging to a
service other than the judicial service. Till India attained
independence, the position was that district Judges were
appointed by the Governor from three sources, namely, (i) the
Indian Civil Service, (ii) the Provincial Judicial Service, and
(iii) the Bar. But after India attained independence in 1947,
recruitment to the Indian Civil Service was discontinued and the
Government of India decided that the members of the newly
created Indian Administrative Service would not be given
judicial posts. Thereafter district Judges have been recruited
only from either the judicial service or from the Bar. There
was no case of a member of the executive having been promoted as
a district Judge. If that was the factual position at the time
the Constitution came into force, it is unreasonable to
attribute to the makers of the Constitution, who had so
carefully provided for the independence of the judiciary, an
intention to destroy the same by an indirect method. What can be
more deleterious to the good name of the judiciary than to
permit at the level of district Judges, recruitment from the
executive departments? Therefore, the history of the services
also supports our construction that the expression “the service”
in Art. 233(2) can only mean the judicial service.”

 

44. The Constitution Bench in Chandra Mohan4 has thus clearly
held that the expression ‘the service’ in Article 233(2) means the judicial
service.
45. In Satya Narain Singh5, this Court again had an occasion to
consider Article 233 of the Constitution. This Court referred to an
earlier decision of this Court in Rameshwar Dayal9 and construed
Article 233 as follows:

“…….The first clause deals with “appointments of persons to be,
and the posting and promotion of, District Judges in any State”
while the second clause is confined in its application to
persons “not already in the service of the Union or of the
State”. We may mention here that “service of the Union or of the
State” has been interpreted by this Court to mean Judicial
Service. Again while the first clause makes consultation by the
Governor of the State with the High Court necessary, the second
clause requires that the High Court must recommend a person for
appointment as a District Judge. It is only in respect of the
persons covered by the second clause that there is a requirement
that a person shall be eligible for appointment as District
Judge if he has been an advocate or a pleader for not less than
7 years. In other words, in the case of candidates who are not
members of a Judicial Service they must have been advocates or
pleaders for not less than 7 years and they have to be
recommended by the High Court before they may be appointed as
District Judges, while in the case of candidates who are members
of a Judicial Service the 7 years’ rule has no application but
there has to be consultation with the High Court. A clear
distinction is made between the two sources of recruitment and
the dichotomy is maintained. The two streams are separate until
they come together by appointment. Obviously the same ship
cannot sail both the streams simultaneously………….”.

 
After referring to Chandra Mohan4 , this Court in paragraph 5 (pg. 230)
stated as under :
“5. Posing the question whether the expression “the service of
the Union or of the State” meant any service of the Union or of
the State or whether it meant the Judicial Service of the Union
or of the State, the learned Chief Justice emphatically held
that the expression “the service” in Article 233(2) could only
mean the Judicial Service. But he did not mean by the above
statement that persons who are already in the service, on the
recommendation by the High Court can be appointed as District
Judges, overlooking the claims of all other seniors in the
Subordinate Judiciary contrary to Article 14 and Article 16 of
the Constitution.”
46. From the above, we have no doubt that the expression, ‘the
service’ in Article 233(2) means the “judicial service”. Other members of
the service of Union or State are as it is excluded because Article 233
contemplates only two sources from which the District Judges can be
appointed. These sources are: (i) judicial service; and (ii) the
advocate/pleader or in other words from the Bar. District Judges can,
thus, be appointed from no source other than judicial service or from
amongst advocates. Article 233(2) excludes appointment of District Judges
from the judicial service and restricts eligibility of appointment as
District Judges from amongst the advocates or pleaders having practice of
not less than seven years and who have been recommended by the High Court
as such.
47. The question that has been raised before us is whether a Public
Prosecutor/Assistant Public Prosecutor/District Attorney/Assistant District
Attorney/Deputy Advocate General, who is in full time employ of the
Government, ceases to be an advocate or pleader within the meaning of
Article 233(2) of the Constitution.
48. In Kumari Shrilekha Vidyarthi3 , this Court dealt with scheme
of the Cr.P.C. relating to Public Prosecutors and it was held that the Code
invests the Public Prosecutors with the attribute of the holder of public
office. In paragraph 14 of the Report (Pgs. 232-233) this Court stated as
under :
“………..This power of the Public Prosecutor in charge of the case
is derived from statute and the guiding consideration for it,
must be the interest of administration of justice. There can be
no doubt that this function of the Public Prosecutor relates to
a public purpose entrusting him with the responsibility of so
acting only in the interest of administration of justice. In the
case of Public Prosecutors, this additional public element
flowing from statutory provisions in the Code of Criminal
Procedure, undoubtedly, invest the Public Prosecutors with the
attribute of holder of a public office which cannot be whittled
down by the assertion that their engagement is purely
professional between a client and his lawyer with no public
element attaching to it.”

49. In State of U.P. and Others v. U.P. State Law Officers
Association and Others[13], this Court, while distinguishing the judgment
of this Court in Kumari Shrilekha Vidyarthi3 , observed that appointment
of lawyers by the Government and the public bodies to conduct work on their
behalf and their subsequent removal from such appointment have to be
examined from three different angles, namely, the nature of the legal
profession, the interest of the public and the modes of the appointment and
removal. With regard to the legal profession, this Court said in paras 14
and 15 (pg. 216) as under:

“14. Legal profession is essentially a service-oriented
profession. The ancestor of today’s lawyer was no more than a
spokesman who rendered his services to the needy members of the
society by articulating their case before the authorities that
be. The services were rendered without regard to the
remuneration received or to be received. With the growth of
litigation, lawyering became a full-time occupation and most of
the lawyers came to depend upon it as the sole source of
livelihood. The nature of the service rendered by the lawyers
was private till the Government and the public bodies started
engaging them to conduct cases on their behalf. The Government
and the public bodies engaged the services of the lawyers purely
on a contractual basis either for a specified case or for a
specified or an unspecified period. Although the contract in
some cases prohibited the lawyers from accepting private briefs,
the nature of the contract did not alter from one of
professional engagement to that of employment. The lawyer of the
Government or a public body was not its employee but was a
professional practitioner engaged to do the specified work. This
is so even today, though the lawyers on the full-time rolls of
the Government and the public bodies are described as their law
officers. It is precisely for this reason that in the case of
such law officers, the saving clause of Rule 49 of the Bar
Council of India Rules waives the prohibition imposed by the
said rule against the acceptance by a lawyer of a full-time
employment.
15. The relationship between the lawyer and his client is one of
trust and confidence. The client engages a lawyer for personal
reasons and is at liberty to leave him also, for the same
reasons. He is under no obligation to give reasons for
withdrawing his brief from his lawyer. The lawyer in turn is not
an agent of his client but his dignified, responsible spokesman.
He is not bound to tell the court every fact or urge every
proposition of law which his client wants him to do, however
irrelevant it may be. He is essentially an adviser to his client
and is rightly called a counsel in some jurisdictions. Once
acquainted with the facts of the case, it is the lawyer’s
discretion to choose the facts and the points of law which he
would advance. Being a responsible officer of the court and an
important adjunct of the administration of justice, the lawyer
also owes a duty to the court as well as to the opposite side.
He has to be fair to ensure that justice is done. He demeans
himself if he acts merely as a mouthpiece of his client. This
relationship between the lawyer and the private client is
equally valid between him and the public bodies.”

50. In S.B. Shahane and Others v. State of Maharashtra and
another[14], this Court held in para 12 (Pg. 43) as under:

“12. When Assistant Public Prosecutors are appointed under
Section 25 of the Code for conducting prosecutions in courts of
Magistrates in a district fairly and impartially, separating
them from the police officers of the Police Department and
freeing them from the administrative or disciplinary control of
officers of the Police Department, are the inevitable
consequential actions required to be taken by the State
Government which appoints such Assistant Public Prosecutors,
inasmuch as, taking of such actions are statutory obligations
impliedly imposed upon it under sub-section (3) thereof. When
such consequential actions are taken by the State Government in
respect of large number of persons appointed as Assistant Public
Prosecutors, it becomes necessary for putting them on a separate
cadre of Assistant Public Prosecutors and creating a separate
Prosecution Department as suggested by the Law Commission in its
Report making those Assistant Public Prosecutors subject to
control of their superiors in the hierarchy in matters of
administration and discipline, with the head of such Prosecution
Department being made directly responsible to the State
Government in respect of conduct of prosecutions by the
Assistant Public Prosecutors of his department. Since the
aforesaid notification dated 1-4-1974 issued by the Government
of Maharashtra under Section 25 of the Code merely appoints the
appellants and others, as mentioned in Schedule to the
notification, the police prosecutors of the Police Department as
Assistant Public Prosecutors without freeing such Assistant
Public Prosecutors from the administrative and disciplinary
control of the Police Department to which they belonged earlier,
and without creating a separate department of prosecution for
them with the head of that department or departments being made
directly responsible to the Government, the Government of
Maharashtra has failed to discharge its statutory obligation
impliedly imposed upon it in that regard under sub-section (3)
of Section 25 of the Code.”

 

51. In Sushma Suri6, a three-Judge Bench of this Court considered
the meaning of the expression “advocate” occurring in Article 233 (2) of
the Constitution and unamended Rule 49 of the BCI Rules. In paragraph 6 of
the Report (Pg. 335) this Court held as under :

“6. If a person on being enrolled as an advocate ceases to
practise law and takes up an employment, such a person can by no
stretch of imagination be termed as an advocate. However, if a
person who is on the rolls of any Bar Council is engaged either
by employment or otherwise of the Union or the State or any
corporate body or person practises before a court as an advocate
for and on behalf of such Government, corporation or authority
or person, the question is whether such a person also answers
the description of an advocate under the Act. That is the
precise question arising for our consideration in this case.”

 

 

Then in paragraph 8 of the Report, this Court observed that for the
purposes of the 1961 Act and the BCI Rules, a law officer (Public
Prosecutor or Government Pleader) would continue to be an advocate. Not
accepting the view of Delhi High Court in Oma Shanker Sharma v. Delhi
Administration case (C.W.P. No. 1961 of 1987), this Court having regard to
the object of recruitment under Article 233(2) held in paragraph 9 (Pg.
336):
“………To restrict it to advocates who are not engaged in the
manner stated by us earlier in this order is too narrow a view,
for the object of recruitment is to get persons of necessary
qualification, experience and knowledge of life. A Government
Counsel may be a Public Prosecutor or Government Advocate or a
Government Pleader. He too gets experience in handling various
types of cases apart from dealing with the officers of the
Government. Experience gained by such persons who fall in this
description cannot be stated to be irrelevant nor detrimental to
selection to the posts of the Higher Judicial Service. The
expression “members of the Bar” in the relevant Rule would only
mean that particular class of persons who are actually
practising in courts of law as pleaders or advocates. In a very
general sense an advocate is a person who acts or pleads for
another in a court and if a Public Prosecutor or a Government
Counsel is on the rolls of the Bar Council and is entitled to
practise under the Act, he answers the description of an
advocate.”

 
With regard to unamended Rule 49 of the BCI Rules, this Court held as under
:
“10. Under Rule 49 of the Bar Council of India Rules, an
advocate shall not be a full-time employee of any person,
Government, firm, corporation or concern and on taking up such
employment, shall intimate such fact to the Bar Council
concerned and shall cease to practise as long as he is in such
employment. However, an exception is made in such cases of law
officers of the Government and corporate bodies despite his
being a full-time salaried employee if such law officer is
required to act or plead in court on behalf of others. It is
only to those who fall into other categories of employment that
the bar under Rule 49 would apply. An advocate employed by the
Government or a body corporate as its law officer even on terms
of payment of salary would not cease to be an advocate in terms
of Rule 49 if the condition is that such advocate is required to
act or plead in courts on behalf of the employer. The test,
therefore, is not whether such person is engaged on terms of
salary or by payment of remuneration, but whether he is engaged
to act or plead on its behalf in a court of law as an advocate.
In that event the terms of engagement will not matter at all.
What is of essence is as to what such law officer engaged by the
Government does — whether he acts or pleads in court on behalf
of his employer or otherwise. If he is not acting or pleading on
behalf of his employer, then he ceases to be an advocate. If the
terms of engagement are such that he does not have to act or
plead, but does other kinds of work, then he becomes a mere
employee of the Government or the body corporate. Therefore, the
Bar Council of India has understood the expression “advocate” as
one who is actually practising before courts which expression
would include even those who are law officers appointed as such
by the Government or body corporate.”
52. The authority most strongly relied on for the appellants is
the decision of this Court in Sushma Suri6. Their contention is that the
decision in Sushma Suri6 is on all fours irrespective of amendment in Rule
49 of the BCI Rules. On the other hand, the High Court has held – and the
respondent (successful writ petitioner) supports the view of the High Court
– that Rule 49 in the present form has altered the legal position and
Sushma Suri6 has no application. We shall deal with this aspect a little
later.
53. In Satish Kumar Sharma7, the facts were these : the appellant
was initially appointed as Assistant (Legal) by the Himachal Pradesh State
Electricity Board (for short, ‘Board’); the said post was re-designated as
Law Officer Grade-II. Later on, the appellant was allowed to act as an
advocate of the Board and, accordingly, his application seeking enrollment
was sent by the Board to the Bar Council of Himachal Pradesh. The Bar
Council of Himachal Pradesh communicated to the Board that the appellant
did not meet the requirements of the Rules; he should be first designated
as Law Officer and the order of appointment and the terms of such
appointment be communicated. Consequent on the communication received from
the Bar Council of Himachal Pradesh, the Board designated the appellant as
Law Officer. The Bar Council of Himachal Pradesh issued a certificate of
enrolment dated 9.7.1984 to the appellant. Subsequently, the appellant was
given ad hoc promotion to the post of Under Secretary, (Legal)-cum-Law
Officer and then promoted as Under Secretary, (Legal)-cum-Law Officer on
officiating basis. Bar Council of Himachal Pradesh issued a notice to the
appellant to show cause why his enrolment be not withdrawn. The appellant
responded to the said notice. In the meanwhile, appellant was also promoted
as Deputy Secretary (Legal)-cum-Law Officer on ad hoc basis. On 12.5.1996,
the Bar Council of Himachal Pradesh passed an order withdrawing the
enrolment of the appellant with immediate effect and directed him to
surrender the enrolment certificate within 15 days therefrom. It was this
resolution which was challenged by the appellant before the Himachal
Pradesh High Court. However, he was unsuccessful before the High Court and
he approached this Court. This Court referred to Sections 24, 28 and 49 of
the 1961 Act and Rule 49 of the BCI Rules. This Court also considered the
terms of appointment, nature of duties and service conditions relating to
the appellant and in paragraph 17 (Pg. 377) of the Report noted as follows
:
“17. Looking to the various appointment/promotion orders issued
by the Board to the appellant and regulation of business
relating to Legal Cell of the Board aforementioned, we can
gather that:
(1) the appellant was a full-time salaried employee at the time
of his enrolment as an advocate and continues to be so, getting
fixed scales of pay;
(2) he is governed by the conditions of service applicable to
the employees of the Board including disciplinary proceedings.
When asked by us, the learned counsel for the appellant also
confirmed the same;
(3) he joined the services of the Board as a temporary Assistant
(Legal) and continues to head the Legal Cell after promotions, a
wing in the Secretariat of the Board;
(4) his duties were/are not exclusively or mostly to act or
plead in courts; and
(5) promotions were given from time to time in higher pay scales
as is done in case of other employees of the Board on the basis
of recommendation of Departmental Promotion Committee.”

53.1. Then with regard to Rule 49 of the BCI Rules, this Court in
paragraph 18 (pgs. 377-378) observed as under :
“18. On a proper and careful analysis, having regard to the
plain language and clear terms of Rule 49 extracted above, it is
clear that:
(i) the main and opening paragraph of the rule prohibits or bars
an advocate from being a full-time salaried employee of any
person, Government, firm, corporation or concern so long as he
continues to practice and an obligation is cast on an advocate
who takes up any such employment to intimate the fact to the Bar
Council concerned and he shall cease to practice so long as he
continues in such employment;
(ii) para 2 of the rule is in the nature of an exception to the
general rule contained in main and opening paragraph of it. The
bar created in para 1 will not be applicable to Law Officers of
the Central Government or a State or any public corporation or
body constituted by a statute, if they are given entitlement
under the rules of their State Bar Council. To put it in other
way, this provision is an enabling provision. If in the rules of
any State Bar Council, a provision is made entitling Law
Officers of the Government or authorities mentioned above, the
bar contained in Rule 49 shall not apply to such Law Officers
despite they being full-time salaried employees;
(iii) not every Law Officer but only a person who is designated
as Law Officer by the terms of his appointment and who by the
said terms is required to act and/or plead in courts on behalf
of his employer can avail the benefit of the exception contained
in para 2 of Rule 49.”

 
53.2. In paragraph 19, this Court noted that no rules have been
framed by the Bar Council of Himachal Pradesh in respect of Law Officer
appointed as a full time salaried employee and if there are no rules in
this regard then there is no entitlement for enrolment and the appellant’s
case could not fit in the exception of Rule 49 and the bar contained in the
first paragraph of Rule 49 was attracted. It also noted that the appellant
was/is a full time salaried employee and his work was not mainly or
exclusively to act or plead in the Court. The decision in Sushma Suri6 was
held to be of no help to the case of the appellant. In paragraph 23 (Pgs.
380-381), the Court observed that the work being done by the appellant was
different from Prosecutors and Government Pleaders in relation to acting
and pleading in court. This is what the Court said :
“23. We find no merit in the ground urged that the appellant was
discriminated against the prosecutors and the government
pleaders. The duties, nature of work and service conditions of
the appellant, details of which are already given above, are
substantially different from the duties and nature of work of
prosecutors and government pleaders particularly in relation to
acting and pleading in court. Thus the appellant stood on a
different footing. The High Court in paras 24-26 has dealt with
this aspect of the case and rightly rejected the argument based
on the ground of discrimination.”

 

54. In State of U.P. & Another v. Johri Mal[15] , a three-Judge
Bench of this Court while dealing with the nature of the office of the
District Government Counsel, held in paras 71, 72, 73 and 74 (pgs.744-745)
as under:
“71. The District Government Counsel appointed for conducting
civil as also criminal cases hold offices of great importance.
They are not only officers of the court but also the
representatives of the State. The court reposes a great deal of
confidence in them. Their opinion in a matter carries great
weight. They are supposed to render independent, fearless and
non-partisan views before the court irrespective of the result
of litigation which may ensue.
72. The Public Prosecutors have greater responsibility. They are
required to perform statutory duties independently having regard
to various provisions contained in the Code of Criminal
Procedure and in particular Section 320 thereof.
73. The Public Prosecutors and the Government Counsel play an
important role in administration of justice. Efforts are
required to be made to improve the management of prosecution in
order to increase the certainty of conviction and punishment for
most serious offenders and repeaters. The prosecutors should not
be overburdened with too many cases of widely varying degrees of
seriousness with too few assistants and inadequate financial
resources. The prosecutors are required to play a significant
role in the administration of justice by prosecuting only those
who should be prosecuted and releasing or directing the use of
non-punitive methods of treatment of those whose cases would
best be processed.
74. The District Government Counsel represent the State. They,
thus, represent the interest of the general public before a
court of law. The Public Prosecutors while presenting the
prosecution case have a duty to see that innocent persons may
not be convicted as well as an accused guilty of commission of
crime does not go unpunished. Maintenance of law and order in
the society and, thus, to some extent maintenance of rule of law
which is the basic fibre for upholding the rule of democracy
lies in their hands. The Government Counsel, thus, must have
character, competence, sufficient experience as also standing at
the Bar. The need for employing meritorious and competent
persons to keep the standard of the high offices cannot be
minimised. The holders of the post have a public duty to
perform. Public element is, thus, involved therein.”
55. In Mahesh Chandra Gupta v. Union of India and Others[16], with
reference to the provisions contained in the Legal Practitioners Act, 1879,
the 1926 Act and the 1961 Act, this Court observed as follows:
“66. Thus, it becomes clear from the legal history of the 1879
Act, the 1926 Act and the 1961 Act that they all deal with a
person’s right to practise or entitlement to practise. The 1961
Act only seeks to create a common Bar consisting of one class of
members, namely, advocates. Therefore, in our view, the said
expression “an advocate of a High Court” as understood, both,
pre and post 1961, referred to person(s) right to practise.
Therefore, actual practise cannot be read into the qualification
provision, namely, Article 217(2)(b). The legal implication of
the 1961 Act is that any person whose name is enrolled on the
State Bar Council would be regarded as “an advocate of the High
Court”. The substance of Article 217(2)(b) is that it prescribes
an eligibility criteria based on “right to practise” and not
actual practice.”
56. The Karnataka High Court in Mallaraddi H. Itagi and Others v.
The High Court of Karnataka, Bangalore and Another[17] was, inter alia,
concerned with the question whether the petitioners, who were working as
either Assistant Public Prosecutors or Senior Assistant Public Prosecutors
or Public Prosecutors, were eligible to be considered for appointment as
District Judges under Article 233(2) of the Constitution and Rule 2 of
Karnataka Judicial Services (Recruitment) Rules, 1983 (for short,
‘Karnataka Recruitment Rules’). The Division Bench of the High Court
considered the relevant provisions and the decisions of this Court in
Sushma Suri6 and Satya Narain Singh5. The High Court held that having
regard to the provisions in the Karnataka Recruitment Rules, the
petitioners were civil servants in the employment of the State Government
and could not be treated as practicing advocates from the date they were
appointed to the post of Assistant Public Prosecutors. The High Court took
into consideration Rule 49 of the BCI Rules and held as under (Pg. 86-88):
“The petitioners 1 to 9 came to be appointed as Assistant Public
Prosecutors/Senior Assistant Public Prosecutors/Public
Prosecutors in terms of the Recruitment Rules framed by the
State Government. Therefore, in terms of the main provision
contained in Rule 49 of the Bar Council of India Rules, the
petitioners on their appointment as Assistant Public Prosecutors
ceased to be practising Advocates. Further, as noticed by us
earlier, when once the petitioners had surrendered their
Certificate of Practice and suspended their practice in terms of
Rule 5 of the Bar Council of India Rules, it is not possible to
take the view that they still continue to be practising
Advocates. The rules which prescribe the qualification for
appointment to the post of District Judges by direct recruitment
provides that an applicant must be practising on the last date
fixed for submission of application, as an Advocate and must
have so practised for not less than 7 years as on such date. The
case of Sushma Suri, supra, does not deal with the situation
where the Law Officers had surrendered the Certificate of
Practice and suspended their practice. The facts of that case
indicates that the Hon’ble Supreme Court proceeded on the basis
that the exception provided to Rule 49 of the Rules applies to
the Law Officers in that case inasmuch as the Law Officers in
those cases were designated by terms of their appointment as Law
Officers for the purpose of appearing before the Courts on
behalf of their employers. Therefore, facts of those cases are
different from the facts of the case of petitioners 1 to 9. The
rule similar to the one before us which provides that an
Advocate must be a practising Advocate on the date of the
submission of the application did not fall for consideration
before the Hon’ble Supreme Court. The Delhi Higher Judicial
Services Rules, 1970 did not provide that an Advocate should be
a practising Advocate on the date of submission of his
application. Under these circumstances, in our considered view,
the observation made by the Hon’ble Supreme Court in the case of
Sushma Suri, supra, at paragraph 8 of the judgment which is
strongly relied upon by the learned Counsel for the petitioners
wherein it is stated that “for purposes of the Advocates Act and
the Rules framed thereunder the Law Officer (Public Prosecutor
or Government Counsel) will continue to be an Advocate. The
intention of the relevant rules is that a candidate eligible for
appointment to the higher judicial service should be a person
who regularly, practices before the Court or Tribunal appearing
for a client” has no application to the facts of the present
case. As noticed by us, the qualification prescribed for
Assistant Public Prosecutor is three years of practice as an
Advocate on the date of submission of application. The
qualification prescribed for recruitment to the post of Munsiff,
i.e., Civil Judge (Junior Division) is that an applicant, on the
last date fixed for submission of application, must be a
practising Advocate and must have practiced for not less than
four years on the date of application; or who is working as an
Assistant Public Prosecutor/Senior Assistant Public Prosecutor
or as a Public Prosecutor in the Department of Prosecutions and
must have so worked for not less than 4 years as on the date of
application. Therefore, the Assistant Public Prosecutors/Senior
Assistant Public Prosecutor/Assistant Public Prosecutor are made
eligible for appointment only to the post of Munsiffs Civil
Judge (Junior Division) under the Recruitment Rules. But, they
are not made eligible under the Rules for appointment as
District Judges. Therefore, when the Rule making Authority
itself has not made the Assistant Public Prosecutor/Senior
Assistant Public Prosecutor/Public Prosecutor as eligible for
appointment to the post of District Judges, it is not
permissible to treat the Assistant Public Prosecutor/Senior
Assistant Public Prosecutor/Public Prosecutor as practising
Advocates by judicial interpretation and by giving extended
meaning to make them eligible for appointment to the post of
District Judges.”

With reference to the decision of this Court in Satya Narain Singh5 , the
Karnataka High Court held as under (Pg. 88-89) :
“The Hon’ble Supreme Court in the case of Satya Narain Singh v.
High Court of Judicature at Allahabad and Ors., 1985 (1) SCC
225, while interpreting Sub-clause (2) of Article 233 of the
Constitution of India has taken the view that “a person not
already in service of Union or of the State” shall mean only
officers in judicial service and the Judicial Officers who are
already in service are not eligible for appointment in respect
of the post reserved for direct recruitment under Sub-clause (2)
of Article 233 of the Constitution of India. Therefore, the
Judicial Officers who are in the State services are ineligible
for appointment in respect of direct recruitment vacancies.
However, if the argument of the learned Counsel for petitioners
is accepted as correct, the Assistant Public Prosecutor and
Senior Assistant Public Prosecutor who are only made eligible
under the Recruitment Rules to the post of Munsiffs which is the
lowest cadre in the District Judiciary would be eligible for
appointment to the post of District Judges in respect of the
posts reserved for direct recruitment vacancies. In our view,
the acceptance of such a position would lead to discrimination
between the officers of the State who are in judicial services
on the one hand and Assistant Public Prosecutors, Senior
Assistant Public Prosecutors and Public Prosecutors on the
other. While considering the contention of the learned Counsel
for the petitioners that the Assistant Public Prosecutor/Senior
Assistant Public Prosecutor/Public Prosecutors should be treated
as practising Advocates, this Court cannot ignore the
consequence of resultant incongruous situation, if such an
argument is accepted. We are also unable to accede to the
submission of the learned Counsel for the petitioners that so
long as the names of the petitioners 1 to 9 are not removed from
the Rolls of State Bar Council, the said petitioners would be
practising Advocates. In our view, there is no merit in this
submission. No doubt, Section 2(a) of the Advocates Act
(hereinafter referred to as the “Act”) provides that “an
‘Advocate’ means an Advocate entered in any roll under the
provisions of Advocates Act”. That does not mean the Advocate
who has surrendered the Certificate of Practice to the State Bar
Council and who has suspended his practice also can be treated
either as an Advocate or as a practising Advocate. May be that
once a Law graduate enrolls himself as an Advocate, his name
finds a place in the Rolls of the State Bar Council till it is
removed from the Rolls of the State Bar Council in terms of
Clause (d) of Sub-section (3) of Section 35 of the Act. But,
that does not mean a person who has suspended his practice on
securing a full time appointment can still be considered as a
practising Advocate. This conclusion of ours gets support from
the Sub-section (4) of Section 35 of the Act wherein it is
provided that where an Advocate is suspended from practice,
during the period of suspension he is debarred from practising
in any Court or before any authority or person in India.
Therefore, if the object of surrendering Certificate of Practice
and suspending the practice is to give up the right to practice
before the Court; the petitioners 1 to 9 who were required to
surrender the Certificate of Practice and who have so suspended
their practice, cannot in our view, be held either as Advocates
or as practising Advocates. In our view, during the period of
suspension of practice, such a person ceases to be an Advocate;
and continuance of his name on the Rolls of Bar Council is of no
consequence so far as his right to practice is concerned and
such a person cannot designate himself as an Advocate.
Therefore, we are of the view that the petitioners 1 to 9 not
being practising Advocates on the date of submission of their
applications, they are not eligible for appointment as District
Judges in terms of the qualification prescribed. Therefore, the
Selection Committee has, in our view, rightly rejected the claim
of the petitioners 1 to 9 for appointment as District Judges and
they were rightly not called for interview. The petitioners
cannot have any grievance on that account.”
57. The judgment of the Karnataka High Court in Mallaraddi H.
Itagi17 was challenged before this Court. This Court dismissed the appeals
on 18.05.2009[18] and, upholding the judgment of the High Court, observed
as follows:

“7. On that basis the Court came to the conclusion that the
appellant therein was not liable to be considered as he was
holding a regular post. In paragraph 19 it was observed:
“These orders clearly show that the appellant was required to
work in the Legal Cell of the Secretariat of the Board; was
given different pay scales; rules of seniority were
applicable; promotions were given to him on the basis of the
recommendations of the Departmental Promotion Committee; was
amenable to disciplinary proceedings, etc.
Further looking to the nature of duties of Legal Cell as
stated in the regulation of business of the Board extracted
above, the appellant being a full-time salaried employee
had/has to attend to so many duties which appear to be
substantial and predominant. In short and substance we find
that the appellant was/is a full-time salaried employee and
his work was not mainly or exclusively to act or plead in
court.
Further, there may be various challenges in courts of law
assailing or relating to the decisions/actions taken by the
appellant himself such as challenge to issue of statutory
regulation, notification, the institution/ withdrawal of any
prosecution or other legal/quasi-legal proceedings etc. In
a given situation the appellant may be amenable to
disciplinary jurisdiction of his employer and/or to the
disciplinary jurisdiction of the Bar Council. There could be
conflict of duties and interest. In such an event, the
appellant would be in an embarrassing position to plead and
conduct a case in a court of law.
Moreover, mere occasional appearances in some courts on
behalf of the Board even if they be, in our opinion, could
not bring the appellant with the meaning of “Law Officer” in
terms of para 3 of Rule 49.”
and has also taken a view that in a situation like this the
decision in Sushma Suri case is not applicable. We have no
reason to take any different view, as had already been taken by
this court, as the situation is not different. It is already
considered before the High Court that the appellants were
holding a regular post they were having the regular pay scale,
they were considered for promotion, they were employed by the
State Government Rules and therefore they were actually the
Government servants when they made applications for the posts of
District Judges.”

 

 
58. The decision of the Karnataka High Court in Mallaraddi H.
Itagi17 and the judgment of this Court18 in the appeals from that
decision have been heavily relied on by the respondent – successful writ
petitioner.

59. Few decisions rendered by some of the High Courts on the point
may also be noticed here. In Sudhakar Govindrao Deshpande11, the issue
that fell for consideration before the Bombay High Court was whether the
petitioner therein who was serving as Deputy Registrar at the Nagpur Bench
of the Bombay High Court, was eligible for appointment to the post of the
District Judge. The advertisement that was issued by the High Court
inviting applications for five posts of District Judges, inter alia,
stated, ‘candidate must ordinarily be an advocate or pleader who has
practised in the High Court, Bombay or Court subordinate thereto for not
less than seven years on the 1st October, 1980’. The Single Judge of the
Bombay High Court considered Articles 233, 234 and 309 of the Constitution,
relevant Recruitment Rules and noted the judgments of this Court in
Chandra Mohan4, Satya Narain Singh5 and Rameshwar Dayal9. It was observed
as follows:
“ . . . . . . . . the phrase “has been an Advocate or a pleader”
must be interpreted as a person who has been immediately prior
to his appointment a member of the Bar, that is to say either
an Advocate or a pleader. In fact, in the above judgment, the
Supreme Court has repeatedly referred to the second group of
persons eligible for appointment under Article 233 (2) as
“members of the Bar”. Article 233(2) therefore, when it refers
to a person who has been for not less than seven years an
Advocate or pleader refers to a member of the Bar who is of not
less than seven years’ standing.”
60. In Smt. Jyoti Gupta v. Registrar General, High Court of M.P.,
Jabalpur and Another[19], Madhya Pradesh High Court was concerned with the
question as to whether the Assistant Public Prosecutors were eligible to
apply for appointment to the post of District Judges. The Madhya Pradesh
High Court held as under :
“. . . . . . A careful reading of the note provided in the
exception states that nothing in Rule 49 of the Bar Council of
India Rules shall apply to a Law Officer of the Central
Government, State Government or a body corporate who is entitled
to be enrolled under the rules of the State Bar Council under
Section 28(2)(d) read with Section 24(1)(e) of the Advocates
Act, 1961 despite his being a full-time salaried employee.
Hence, the exception to Rule 49 has been provided because of the
provisions in the Rules of State Bar Council made under Section
28(2)(d) read with Section 24(1)(e) of the Advocates Act, 1961
for a Law Officer of the Central Government or the State
Government or a body corporate to be admitted into the roll of
the State Bar Council if he is required by the terms of his
appointment to act and/or plead in Courts on behalf of his
employer. In other words, if the rules made by the State Bar
Council under Section 28(2)(d) read with Section 24(1)(e) of the
Advocates Act, 1961 provide for admission as an Advocate,
enrolment in the State Bar Council as an Advocate or a Law
Officer of the Central Government or the State Government or a
body corporate, who, by the terms of his employment, is required
to act and/or plead in Courts on behalf of his employer, he can
be admitted as an Advocate and enrolled in the State Bar Council
by virtue of the provisions of Sections 24(1)(e) and 28(2)(d) of
the Advocates Act, 1961 and the rules made thereunder by the
State Bar Council and he does not cease to be an Advocate on his
becoming such Law Officer of the Central Government, State
Government or a body corporate. As we have seen, the State Bar
Council of M.P. has provided under Proviso(i) of Rule 143 that a
Law Officer of the Central Government or a Government of State
or a public corporation or a body constituted by a statute, who
by the terms of his appointment, is required to act and/or plead
in Courts on behalf of his employer, is qualified to be admitted
as an Advocate even though he may be in full or part-time
service or employment of such Central Government, State
Government, public corporation or a body corporate. The position
of law, therefore, has not materially altered after the deletion
of the note contained in the exception under Rule 49 of the Bar
Council of India Rules by the resolution of the Bar council of
India, dated 22nd June, 2001.
…..
…..
…..
In the result, we hold that if a person has been enrolled as an
Advocate under the Advocates Act, 1961 and has thereafter been
appointed as Public Prosecutor/Assistant Public Prosecutor or
Assistant District Public Prosecutor and by the terms of his
appointment continues to conduct cases on behalf of the State
Government before the Criminal Courts, he does not cease to be
an Advocate within the meaning of Article 233(2) of the
Constitution and Rule 7(1)(c) of M.P. Uchchatar Nyayik Sewa
(Bharti Tatha Sewa Shartein) Niyam, 1994 for the purpose of
recruitment to the post of District Judge (Entry Level) in the
M.P. Higher Judicial Service.”

 
61. In K. Appadurai v. The Secretary to Government of Tamil Nadu
and Another[20], one of the questions under consideration before the Madras
High Court was whether for appointment to the post of District Judge
(Entry Level), the applications could have been invited from the Assistant
Public Prosecutor (Grade I & II). The Division Bench of that Court referred
to Article 233 of the Constitution, Rule 49 of the BCI Rules and the
decisions of this Court in Satya Narain Singh5, Chandra Mohan4, Sushma
Suri6, Johri Mal15 and Satish Kumar Sharma7. The Division Bench held as
under:

“22. In the light of the ratio laid down by the Supreme Court in
the decisions quoted hereinbefore, it can safely be concluded
that the nature of duties of the Assistant Public Prosecutors is
to act and plead in Courts of Law on behalf of the State as
Advocates. Even after becoming Assistant Public Prosecutors they
continue to practice as advocates and plead the cases on behalf
of the Government and their names remained in the roll of
advocates maintained by the Bar Council. As Public Prosecutors
they acquired much experience in dealing criminal cases.
23. It was argued on behalf of the petitioners that the note
appended to Rule 49 of the Bar Council of India Rules having
been deleted by a resolution dated 22nd June, 2001 of the Bar
Council of India, the ratio decided by the Supreme Court in
Sushma Suri Case (supra) will not apply, and therefore, an
advocate who is employed as a full time salaried employee of the
government, ceases to practice as an advocate so long as he
continues in such employment. The submission made by the counsel
has no substance.

24. As noticed above, Rule 49 of the Bar Council of India Rules
provides an exception where in case of Law Officers of the
government and corporate bodies, despite they being employed by
the government as Law Officers, they cannot cease to be
advocates so long as they are required to plead in the courts.
For example, Assistant Public Prosecutors so appointed by the
government on payment of salary their only nature of work is to
act, plead and defend on behalf of the State as an advocate.
Hence, an advocate employed by the government as Law Officer
namely, an Assistant Public Prosecutor on terms of payment of
salary would not cease to be an advocate in terms of Rule 49 of
the Bar Council of India Rules for the purpose of appointment,
as such advocate is required to act or plead in courts on behalf
of the State. If, in terms of the appointment, an advocate is
made a Law Officer on payment of salary to discharge his duties
at the Secretariat and handle the legal files, he ceased to be
an advocate. In our considered opinion, therefore, the deletion
of the note appended to under Rule 49 of the Bar Council of
India Rules will not in any way affect the legal proposition of
law. We are also of the view that in the light of the relevant
clauses of the Advocates Act, 1961 it will not debar the
Assistant Public Prosecutors to continue and plead in courts as
an advocate.”

 
62. In Biju Babu10 , the question before the Kerala High Court
was whether the appellant, who was a Public Prosecutor appointed by the
Central Government to conduct cases for the C.B.I., was eligible for
appointment to the post of District Judge in the Kerala State Higher
Judicial Service by direct recruitment. The High Court answered the
question in the negative mainly relying on amended Rule 49 of the BCI Rules
and the legal position stated by this Court in Satish Kumar Sharma7.
63. Two more judgments of this Court may be quickly noticed here.
In State of U.P. v. Ramesh Chandra Sharma and others[21], this Court
stated that the appointment of any legal practitioner as a District
Government Counsel is only professional engagement. A two-Judge Bench of
this Court in Samarendra Das, Advocate v. State of West Bengal and
others[22] was concerned with the question whether the post of Assistant
Public Prosecutor was a civil post under the State of West Bengal in terms
of Section 15 of the Administrative Tribunals Act 1985. While answering
the above question in the affirmative, this Court held that the post of
Assistant Public Prosecutor was a civil post. The Court negated the
argument that the Assistant Public Prosecutor was an officer of the Court
of Judicial Magistrate.
64. After the arguments were concluded in these matters and the
judgment was reserved, Respondent No. 1 (original writ petitioner) has
circulated a judgment of the Bombay High Court in Sunanda Bhimrao Chaware
& Ors. v. The High Court of Judicature at Bombay, delivered on 17.10.2012
by the Full Bench of that Court. We are not inclined to consider this
judgment for two reasons. One, the appellants had no occasion to respond
to or explain that judgment. Secondly, and equally important, the
aggrieved parties by that judgment, who are not before us, may be advised
to challenge the judgment. We do not intend to foreclose the rights of the
parties one way or the other.
65. Section 24 Cr.P.C. provides that for every High Court the
Central Government or the State Government shall appoint a Public
Prosecutor. The Central Government or the State Government may also appoint
one or more Additional Public Prosecutor for conducting in such court, any
prosecution, appeal or other proceedings on their behalf. The Central
Government may appoint one or more Public Prosecutors for the purpose of
conducting any case or class of cases in any district or local area.
Insofar as State Government is concerned it provides that for every
district it shall appoint a Public Prosecutor and may also appoint one or
more Additional Public Prosecutors for the district. There are two modes of
appointment of the Public Prosecutors, one, preparation of a panel of names
of persons, who in the opinion of the District Magistrate after
consultation with the Sessions Judge, are fit to be appointed as Public
Prosecutors or Additional Public Prosecutors for the district. The other,
appointment of Public Prosecutor or an Additional Public Prosecutor from
amongst the persons in a State where exists regular cadre of prosecuting
officers. A person is eligible to be appointed as Public Prosecutor only
if he has been in practise as an advocate for not less than seven years.
Special Public Prosecutor may also be appointed by the Central or the State
Government for the purpose of any case or class of cases but he has to be a
person who has been in practise as an advocate for not less than 10 years.

66. Public Prosecutor has a very important role to play in the
administration of justice and, particularly, in criminal justice system.
Way back on April 15, 1935 in Harry Berger v. United States of America[23]
, Mr. Justice Sutherland, who delivered the opinion of the Supreme Court of
United States, said about the United States Attorney that he is the
representative not of an ordinary party to a controversy, but of a
sovereignty whose obligation to govern impartially is as compelling as its
obligation to govern at all, and whose interest, therefore, in a criminal
prosecution is not that it shall win a case, but that justice shall be
done. The twofold aim of United States Attorney is that guilt shall not
escape or innocence suffer. It is as much his duty to refrain from
improper methods calculated to produce wrongful conviction as it is to use
every legitimate means to bring about a just one.
67. The Eighth United Nations Congress on the Prevention of Crime
and the Treatment of Offenders, adopted guidelines on the role of
Prosecutors in 1990. Inter-alia, it states that Prosecutors shall perform
their duties fairly, consistently and expeditiously and respect and protect
human dignity and uphold human rights. He shall take proper account of the
position of the suspect and the victim and pay attention to all relevant
circumstances, irrespective of whether they are to the advantage or
disadvantage of the suspect.
68. As a follow up action to the above guidelines on the role of
Prosecutors, the International Association of Prosecutors adopted Standards
of Professional Responsibility and Statement of the Essential Duties and
Rights of Prosecutors which, inter-alia, provides that Prosecutors shall
strive to be, and to be seen to be, consistent, independent and impartial;
Prosecutors shall preserve the requirements of a fair trial and safeguard
the rights of the accused in co-operation with the Court.
69. European Guidelines on Ethics and Conduct for Public
Prosecutors [The Budapest Guidelines] adopted in the Conference of
Prosecutors General of Europe on 31st May, 2005 are on the same lines as
above. Under the head “professional conduct in the framework of criminal
proceedings”. These guidelines state that when acting within the framework
of criminal proceedings, Public Prosecutor should at all times carry out
their functions fairly, impartially, objectively and, within the framework
of the provisions laid down by law, independently; seek to ensure that the
criminal justice system operates as expeditiously as possible, being
consistent with the interests of justice; respect the principle of the
presumption of innocence and have regard to all relevant circumstances of a
case including those affecting the suspect irrespective of whether they are
to the latter’s advantage or disadvantage.
70. In India, role of Public Prosecutor is no different. He has at
all times to ensure that an accused is tried fairly. He should consider
the views, legitimate interests and possible concern of witnesses and
victims. He is supposed to refuse to use evidence reasonably believed to
have been obtained through recourse to unlawful methods. His acts should
always serve and protect the public interest. The State being a
Prosecutor, the Public Prosecutor carries a primary position. He is not a
mouthpiece of the investigating agency. In Chapter II of the BCI Rules, it
is stated that an advocate appearing for the prosecution of a criminal
trial shall so conduct the prosecution that it does not lead to conviction
of the innocent; he should scrupulously avoid suppression of material
capable of establishing the innocence of the accused.
71. A two Judge Bench of this Court in Mukul Dalal2, while dealing
with a question about the justifiability of the appointment by the State of
Special Public Prosecutors and Assistant Public Prosecutors under Sections
24 and 25 Cr.P.C. respectively, observed that in criminal jurisprudence
the State was a prosecutor and that is why primary position is assigned to
the Public Prosecutor.
72. In Sidhartha Vashisht alias Manu Sharma v. State (NCT of
Delhi)[24], the Court considered role of Public Prosecutor vis-à-vis his
duty of disclosure. The Court noted earlier decisions of this Court in
Shiv Kumar v. Hukam Chand and Another[25] and Hitendra Vishnu Thakur and
Others v. State of Maharashtra and others[26] and in paragraphs 185 and
186 (Pgs. 73-74) of the Report stated as under :
“185. A Public Prosecutor is appointed under Section 24 of the Code of
Criminal Procedure. Thus, Public Prosecutor is a statutory office of
high regard. This Court has observed the role of a Prosecutor in Shiv
Kumar v. Hukam Chand [(1999) 7 SCC 467] as follows: (SCC p. 472, para
13)

“13. From the scheme of the Code the legislative intention is
manifestly clear that prosecution in a Sessions Court cannot be
conducted by anyone other than the Public Prosecutor. The
legislature reminds the State that the policy must strictly conform
to fairness in the trial of an accused in a Sessions Court. A
Public Prosecutor is not expected to show a thirst to reach the
case in the conviction of the accused somehow or the other
irrespective of the true facts involved in the case. The expected
attitude of the Public Prosecutor while conducting prosecution must
be couched in fairness not only to the court and to the
investigating agencies but to the accused as well. If an accused is
entitled to any legitimate benefit during trial the Public
Prosecutor should not scuttle/conceal it. On the contrary, it is
the duty of the Public Prosecutor to winch it to the force and make
it available to the accused. Even if the defence counsel overlooked
it, the Public Prosecutor has the added responsibility to bring it
to the notice of the court if it comes to his knowledge. A private
counsel, if allowed a free hand to conduct prosecution would focus
on bringing the case to conviction even if it is not a fit case to
be so convicted. That is the reason why Parliament applied a bridle
on him and subjected his role strictly to the instructions given by
the Public Prosecutor.
186. This Court has also held that the Prosecutor does not represent
the investigating agencies, but the State. This Court in Hitendra
Vishnu Thakur v. State of Maharashtra [(1994) 4 SCC 602] held: (SCC
pp. 630-31, para 23)
“23. … A Public Prosecutor is an important officer of the State
Government and is appointed by the State under the Criminal
Procedure Code. He is not a part of the investigating agency. He is
an independent statutory authority. The public prosecutor is
expected to independently apply his mind to the request of the
investigating agency before submitting a report to the court for
extension of time with a view to enable the investigating agency to
complete the investigation. He is not merely a post office or a
forwarding agency. A Public Prosecutor may or may not agree with
the reasons given by the investigating officer for seeking
extension of time and may find that the investigation had not
progressed in the proper manner or that there has been unnecessary,
deliberate or avoidable delay in completing the investigation.”

 
Then in paragraph 187 (Pg. 74) the Court stated as follows :
“187. Therefore, a Public Prosecutor has wider set of duties than to
merely ensure that the accused is punished, the duties of ensuring
fair play in the proceedings, all relevant facts are brought before
the court in order for the determination of truth and justice for all
the parties including the victims. It must be noted that these duties
do not allow the Prosecutor to be lax in any of his duties as against
the accused.”
73. In a recent decision in Centre for Public Interest Litigation
and others v. Union of India and others[27], the question before this Court
was in respect of the appointment of a Special Public Prosecutor to conduct
the prosecution on behalf of CBI and ED in 2G Spectrum case. While dealing
with the above question, the Court considered Section 2(u) and Section 24
Cr.P.C. and Section 46 of the Prevention of Money-Laundering Act, 2002 and
few earlier decisions of this Court in Manu Sharma24, Sheonandan Paswan v.
State of Bihar and Others[28] and Johri Mal15 and it was observed that in
an appointment of Public Prosecutor, the principle of master-servant does
not apply; such an appointment is not an appointment to a civil post.

74. The mode of appointment of Public Prosecutor (including
Additional Public Prosecutor and Special Public Prosecutor) under Section
24 Cr.P.C. and the mode of appointment of Assistant Public Prosecutor under
Section 25 Cr.P.C. significantly differ. There is qualitative difference in
the role and position of Public Prosecutor and Assistant Public Prosecutor.
As a matter of law, Assistant Public Prosecutor is not included in the
definition of ‘Public Prosecutor’ under Section 2(u) Cr.P.C. In Samarendra
Das22, this Court held that the post of Assistant Public Prosecutor was a
civil post. This position was accepted by a three-Judge Bench of this Court
in Johri Mal15. It was stated in Johri Mal15, “….a distinction is to be
borne in mind between appointment of a Public Prosecutor or Additional
Public Prosecutor on the one hand and Assistant Public Prosecutor on the
other. So far as Assistant Public Prosecutors are concerned, they are
employees of the State……” As regards ‘Public Prosecutor’, this Court has
consistently held that though Public Prosecutor is a holder of ‘public
office’ and he holds a ‘post’ yet he is not in government service as the
term is usually understood. Despite these differences, for the purposes of
Article 233(2) there is not much difference in a Public Prosecutor and an
Assistant Public Prosecutor and both of them are covered by the expression
‘advocate’. It is so for more than one reason. In the first place, a Public
Prosecutor under Section 24 is appointed by the State Government or the
Central Government for conduct of prosecution, appeal or other proceeding
on its behalf in the High Court or for a district and Assistant Public
Prosecutor is appointed under Section 25 by the State Government or the
Central Government to conduct prosecution on its behalf in the courts of
Magistrates. So the main function of the Public Prosecutor as well as
Assistant Public Prosecutor is to act and/or plead on behalf of the
Government in a court; both of them conduct cases on behalf of the
government. Secondly and remarkably, for the purposes of counting
experience as an advocate as prescribed in sub-sections 24(7) and 24(8),
the period, during which a person has rendered service as a Public
Prosecutor or as Assistant Public Prosecutor, is treated as being in
practice as an advocate under Section 24(9) Cr.P.C. In other words, the
rendering of service as a Public Prosecutor or as Assistant Public
Prosecutor is deemed to be practice as an advocate.

75. The three appellants namely, Deepak Aggarwal, Chandra Shekhar
and Desh Raj Chalia, at the time of their application, were admittedly
working as Assistant District Attorney. They were appointed under the
Haryana State Prosecution Legal Service (Group C) Rules, 1979 (for short,
‘1979 Rules’). The relevant Rules read as under :

“2. Definitions.—In these rules, unless the context otherwise
requires:-
2(a) xxx xxx xxx
2(b) “direct recruitment” means an appointment made otherwise
than by promotion or by transfer of an official already in the
service of the Government of India or any State Government;
xxx xxx xxx
6. Appointing Authority.—Appointment to the posts in the
service shall be made by the Director.
xxx xxx xxx
9. Method of Recruitment.-(1) Recruitment to the Service
shall be made:-
(i) by direct recruitment; or
(ii) by promotion; or
xxx xxx xxx
11. Seniority of Members of the service.-The seniority inter
se of members of the Service shall be determined by the length
of their continuous service on any post in the Service.
Provided that in the case of members appointed by direct
recruitment, the order of merit determined by the Commission or
any other recruiting authority shall not be disturbed in fixing
the seniority:
Provided further that in the case of two or more members
appointed on the same date, their seniority shall be determined
as follows:
(a) a member appointed by direct recruitment shall be
senior to a member appointed by promotion or by transfer;
xxx xxx xxx
12. Liability to serve.-(1) A member of the Service shall be
liable to serve at any place whether within or outside the State
of Haryana, on being ordered so to do by the appointing
authority;
(2) A member of the Service may also be deputed to serve
under,-
(i) a company, an association or a body of
individuals whether incorporated or not, which is wholly or
substantially owned or controlled by the Government, a
Municipal Committee or a local authority, within the State
of Haryana;
(ii) the Central Government or a company an
association or a body of individuals whether incorporated
or not, which is wholly or substantially owned or
controlled by the Central Government; or
(iii) any other State Government, an international
organisation, an autonomous body not controlled by the
Government or a private body;
Provided that no member of the service shall be deputed to
the Central or any other State Government or any
organisation or body referred to in clause (ii) and clause
(iii) except with his consent.
13. Leave, pension or other matters.-xxx xxx
(2) No member of the Service shall have the right of
private practice.
14. Discipline, penalties and appeals.—(1) in matters
relating to discipline, penalties and appeals, members of
the Service shall be governed by the Punjab Civil Services
(Punishment and Appeal) Rules, 1952, as amended from time
to time:
Provided that the nature of penalties which may be
imposed, the authority empowered to impose such penalties
and appellate authority shall, subject to the provisions of
any law or rules made under Article 309 of the Constitution
of India, be such as are specified in Appendix C to these
rules.
(2) The authority competent to pass an order under clause
(c) or clause (d) of sub-rule (1) of rule 10 of the Punjab
Civil Services (Punishment and Appeal) Rules, 1952, as
amended from time to time, shall be as specified in
Appendix ‘D’ to these rules.”

 
75.1. Appendix ‘B’ appended to the 1979 Rules provided for
qualification and experience for Assistant District Attorney. It reads as
follows :

“APPENDIX B”
(See Rule 7)

Qualifications and Experience
Designation of post ………………………………………………………………………………
For Promotion/transfer For direct
recruitment

Assistant District Attorney (i) Degree of Bachelor of Law of (i) Degree
of Bachelor of Law
a recognised university; and of
recognised university;
and
(ii)who has practiced at
the bar
ii) who has worked – for a period of not
less than
(a) for a period of not less than two
years
five years, as Assistant in any
post in the equivalent or higher
scale in any Government office;
or
(b) for a period of not less than three
years on an assignment
(not less than that of an Assistant;
involving legal work to any
Government office.”
—————————————————————————-
——————————————————-
76. Of the other appellants, Rajesh Malhotra at the time of making
application was Public Prosecutor in the office of CBI. His services were
governed by the General Rules and CBI (Legal Advisers and Prosecutors)
Recruitment Rules, 2002. It is not necessary to refer to these Rules in
detail. Suffice it to say that a Public Prosecutor in CBI is appointed by
Union Public Service Commission by direct recruitment or by promotion from
in-service Assistant Public Prosecutors or by deputation from in-service
government servants. Service conditions which are applicable to any
government servant or a member of civil service are applicable to such
Public Prosecutor. Insofar as Dinesh Kumar Mittal is concerned, admittedly
he was working as Deputy Advocate General in the State of Punjab at the
time of his application. In the impugned judgment, he has been held to be
full-time employee of the Punjab Government.
77. We do not think there is any doubt about the meaning of the
expression “advocate or pleader” in Article 233(2) of the Constitution.
This should bear the meaning it had in law preceding the Constitution and
as the expression was generally understood. The expression “advocate or
pleader” refers to legal practitioner and, thus, it means a person who has
a right to act and/or plead in court on behalf of his client. There is no
indication in the context to the contrary. It refers to the members
of the Bar practising law. In other words, the expression “advocate
or pleader” in Article 233(2) has been used for a member of the
Bar who conducts cases in court or, in other words acts and/or pleads in
court on behalf of his client. In Sushma Suri6, a three-Judge Bench of
this Court construed the expression “members of the Bar” to mean class of
persons who were actually practising in courts of law as pleaders or
advocates. A Public Prosecutor or a Government Counsel on the rolls of the
State Bar Council and entitled to practice under the 1961 Act was held to
be covered by the expression ‘advocate’ under Article 233(2). We
respectfully agree.
78. In U.P. State Law Officers Association13, this Court stated
that though the lawyers of the Government or a public body on the full-time
rolls of the government and the public bodies are described as their law
officers, but nevertheless they are professional practitioners. It is for
this reason, the Court said that the Bar Council of India in Rule 49 of
the BCI
Rules (in its original form) in the saving clause waived the prohibition
imposed by the said rule against the acceptance by a lawyer of a full-time
employment. In Sushma Suri6, a three-Judge Bench of this Court while
considering the meaning of the expression “advocate” in Article 233(2) of
the Constitution and unamended Rule 49 of the BCI Rules held that if
a
person was on the rolls of any Bar Council and is engaged either by
employment or otherwise by the Union or State and practises before a court
as an advocate for and on behalf of such Government, such person does not
cease to be an advocate. This Court went on to say that a Public Prosecutor
or a Government Counsel on the rolls of the Bar Council is entitled to
practice. It was laid down that test was not whether such person is
engaged on terms of salary or by payment of remuneration but whether he is
engaged to act or plead on its behalf in a court of law as an advocate. The
terms of engagement do not matter at all and what matters is as to what
such law officer engaged by the Government does – whether he acts or pleads
in court on behalf of his employer or otherwise. If he is not acting or
pleading on behalf of his employer then he ceases to be an advocate; if the
terms of engagement are such that he does not have to act or plead but does
other kinds of work then he becomes a mere employee of the Government or
the body corporate. The functions which the law officer discharges on his
engagement by the Government were held decisive. We are in full agreement
with the above view in Sushma Suri6.
79. While referring to unamended Rule 49, this Court in Sushma
Suri6 said that Bar Council of India had understood the expression
“advocate” as one who is actually practising before courts which expression
would include even those who are law officers employed as such by the
Government or a body corporate.
80. Have the two subsequent decisions in Satish Kumar Sharma7 and
Mallaraddi H. Itagi18 differed from Sushma Suri6? Is there any conflict or
inconsistency in the three decisions? Satish Kumar Sharma7 and Mallaraddi
H. Itagi18 are the two decisions on which very heavy reliance has been
placed on behalf of the successful writ-petitioners (respondents). In
Satish Kumar Sharma7, which has been elaborately noted in the earlier part
of the judgment, this Court found from the appointment/promotion orders in
respect of the appellant therein that he was required to work in the legal
cell of the Secretariat of the Board. Central to the entire reasoning in
Satish Kumar Sharma7 is that being a full-time salaried employee he had/has
to attend many duties and his work was not mainly and exclusively to act or
plead in court. Mere occasional appearances on behalf of the Board in some
courts were not held to be sufficient to bring him within the meaning of
expression ‘Law Officer’. In the backdrop of nature of the office that the
appellant therein held and the duties he was required to perform and in the
absence of any rules framed by the State Bar Council with regard to
enrolment of a full time salaried Law Officer, he was held to be not
entitled for enrolment and the exception set out in paragraphs 2 and 3 of
unamended Rule 49 of the BCI Rules was not found to be attracted. In Satish
Kumar Sharma7, this Court did apply the test that was enunciated in
Sushma Suri6 viz., whether a person is engaged to act and/or plead in a
court of law to find out whether he is an advocate. In Satish Kumar Sharma7
when this Court observed with reference to Chapter II of the BCI Rules that
an advocate has a duty to the court, duty to the client, duty to the
opponent and duty to the colleagues unlike a full time salaried employee
whose duties are specific and confined to his employment, the Court had in
mind such full-time employment which was inconsistent with practice in law.
In para 23 of the judgment in Satish Kumar Sharma7, pertinently this Court
observed that the employment of appellant therein as a head of legal cell
in the Secretariat of the Board was different from the work of the
Prosecutors and Government Pleaders in relation to acting and pleading in
Court. On principle of law, thus, it cannot be said that there is any
departure in Satish Kumar Sharma7 from Sushma Suri6.

81. In Mallaraddi H. Itagi18, the appellants were actually found to
be government servants when they made applications for the post of District
Judges. The High Court in its judgment in Mallaraddi H. Itagi17 had noticed
that the appellants had surrendered their certificate of practice and
suspended their practice on their appointment as Assistant Public
Prosecutors/Senior Assistant Public Prosecutors/Public Prosecutors in terms
of Karnakata Recruitment Rules. It was on this basis that Karnataka High
Court held that Sushma Suri6 was not applicable to the case of the
appellants. There is consonancy and congruity with the decisions of this
Court in Sushma Suri6, Satish Kumar Sharma7 and Mallaraddi H. Itagi18 and,
in our opinion, there is no conflict or inconsistency on the principle of
law.

82. In none of the other decisions viz., Mundrika Prasad Sinha1,
Mukul Dalal2 and Kumari Shrilekha Vidyarthi3, it has been held that a
Government Pleader or a Public Prosecutor or a District Government Counsel,
on his appointment as a full-time salaried employee subject to the
disciplinary control of the Government, ceases to be a legal practitioner.
In Kumari Shrilekha Vidyarthi3 while dealing with the office of District
Government Counsel/ Additional District Government Counsel, it was held
that the Government Counsel in the district were law officers of the State
which were holders of an ‘office’ or ‘post’ but it was clarified that a
District Government Counsel was not to be equated with post under the
government in strict sense. In Ramesh Chandra Sharma21, this Court
reiterated that the appointment of any legal practitioner as a District
Government Counsel is only a professional engagement.

83. However, much emphasis was placed on behalf of the contesting
respondents on Rule 49 of the BCI Rules which provides 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 practice, and shall, on
taking up any such employment, intimate the fact to the Bar Council on
whose roll his name appears, and shall thereupon cease to practice as an
advocate so long as he continues in such employment. It was submitted that
earlier in Rule 49 an exception was carved out that a ‘Law Officer’ of the
Central Government or of a State or of a body corporate who is entitled to
be enrolled under the rules of State Bar Council shall not be affected by
the main provision of Rule 49 despite his being a full time salaried
employee but by Resolution dated 22.6.2001 which was published in the
Gazette on 13.10.2001, the Bar Council of India has deleted the said
provision and hence on and from that date a full time salaried employee, be
he Public Prosecutor or Government Pleader, cannot be an advocate under the
1961 Act.

84. Admittedly, by the above resolution of the Bar Council of
India, the second and third para 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
practice. 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 practice 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 second
and third para by the Resolution dated 22.6.2001 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.

85. 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 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 negative, he ceases to be an advocate.
86. An advocate has a two-fold duty: (1) to protect the interest of
his client and pursue the case briefed to him with the best of his ability,
and (2) as an officer of the Court. Whether full-time employment creates
any conflict of duty or interest for a Public Prosecutor/Assistant Public
Prosecutor? We do not think so. As noticed above, and that has been
consistently stated by this Court, a Public Prosecutor is not a mouth-
piece
of the investigating agency. In our opinion, even though Public
Prosecutor/Assistant Public Prosecutor is in full-time employ with the
government and is subject to disciplinary control of the employer, but
once
he appears in the court for conduct of a case or prosecution, he is guided
by the norms consistent with the interest of justice. His acts always
remain to serve and protect the public interest. He has to discharge his
functions fairly, objectively and within the framework of the legal
provisions. It may, therefore, not be correct to say that an Assistant
Public Prosecutor is not an officer of the court. The view in Samarendra
Das22 to the extent it holds that an Assistant Public Prosecutor is not an
officer of the Court is not a correct view.

87. The Division Bench has in respect of all the five private
appellants – Assistant District Attorney, Public Prosecutor and Deputy
Advocate General – recorded undisputed factual position that they were
appearing on behalf of their respective States primarily in criminal/civil
cases and their appointments were basically under the C.P.C. or Cr.P.C.
That means their job has been to conduct cases on behalf of the State
Government/C.B.I. in courts. Each one of them continued to be enrolled
with the respective State Bar Council. In view of this factual position
and the legal position that we have discussed above, can it be said that
these appellants were ineligible for appointment to the office of
Additional District and Sessions Judge? Our answer is in the negative.
The Division Bench committed two fundamental errors, first, the Division
Bench erred in holding that since these appellants were in full-time
employment of the State Government/Central Government, they ceased to be
‘advocate’ under the 1961 Act and the BCI Rules, and second, that being a
member of service, the first essential requirement under Article 233(2) of
the Constitution that such person should not be in any service under the
Union or the State was attracted. In our view, none of the five private
appellants, on their appointment as Assistant District Attorney/Public
Prosecutor/Deputy Advocate General, ceased to be ‘advocate’ and since each
one of them continued to be ‘advocate’, they cannot be considered to be in
the service of the Union or the State within the meaning of Article 233(2).
The view of the Division Bench is clearly erroneous and cannot be
sustained.

88. 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 some time 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.

89. Rule 11 of the HSJS Rules provides for qualifications for
direct recruits in Haryana Superior Judicial Service. Clause (b) of this
rule provides that the applicant must have been duly enrolled as an
advocate and has practised for a period not less than seven years. Since we
have already held that these five private appellants did not cease to be
advocate while working as Assistant District Attorney/Public
Prosecutor/Deputy Advocate General, the period during which they have been
working as such has to be considered as the period practising law. Seen
thus, all of them have been advocates for not less than seven years and
were enrolled as advocates and were continuing as advocates on the date of
the application.

90. We, accordingly, hold that the five private appellants
(Respondent Nos. 9,12,13,15 and 18 in CWP No. 9157/2008 before the High
Court) fulfilled the eligibility under Article 233(2) of the Constitution
and Rule 11(b) of the HSJS Rules on the date of application. The impugned
judgment as regards them is liable to be set aside and is set aside.

91. Appeals are allowed as above with no order as to costs.

 
…………………….J.
(R.M.
Lodha)

..…………………….J.
(Anil R. Dave)

 

..…………………….J.
(Ranjan Gogoi)

NEW DELHI
JANUARY 21, 2013.
———————–
[1] AIR 1979 SC 1871
[2] (1988) 3 SCC 144
[3] (1991) 1 SCC 212
[4] AIR 1966 SC 1987
[5] (1985) 1 SCC 225
[6] (1999) 1 SCC 330
[7] (2001) 2 SCC 365
[8] (2003) 6 SCC 171
[9] AIR 1961 SC 816
[10] (2008) Labour & Industrial Cases 1784
[11] (1986) Labour & Industrial Cases 710
[12] AIR (1995) Allahabad 148
[13] (1994) 2 SCC 204
[14] 1995 Supp (3) SCC 37
[15] (2004) 4 SCC 714
[16] (2009) 8 SCC 273
[17] 2002 (4) Karnataka Law Journal 76
[18] Civil Appeal Nos. 947-956 of 2003, Mallaraddi H. Itagi and Ors. v.
High Court of Karnataka and Ors.
[19] 2008 (2) MPLJ 486
[20] 2010-4-L.W.454
[21] (1995) 6 SCC 527
[22] (2004) 2 SCC 274
[23] 295 U.S. 78
[24] (2010) 6 SCC 1
[25] (1999) 7 SCC 467
[26] (1994) 4 SCC 602
[27] (2012) 3 SCC 117
[28] (1987) 1 SCC 288

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8

 

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