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2013 (1) TMI 931 - SC - Indian Laws

Issues Involved:
1. Meaning of the expression "the service" in Article 233(2) of the Constitution of India.
2. Definition of "advocate" or "pleader" under Article 233(2).
3. Eligibility of District Attorney/Additional District Attorney/Public Prosecutor/Assistant Public Prosecutor/Assistant Advocate General for appointment as District Judge under Article 233(2).

Issue 1: Meaning of "the service" in Article 233(2)
The Supreme Court examined the meaning of the expression "the service" in Article 233(2) and concluded that it refers to the judicial service. The Court stated, "The expression 'the service' in Article 233(2) means the judicial service." This interpretation aligns with the Constitution Bench decision in Chandra Mohan v. State of U.P., which held that "the service" pertains to judicial service and not any other service of the Union or State.

Issue 2: Definition of "advocate" or "pleader"
The Court clarified that the term "advocate" or "pleader" in Article 233(2) refers to a legal practitioner who has the right to act and/or plead in court on behalf of a client. The Court stated, "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." This definition includes Public Prosecutors and Government Pleaders who are on the rolls of the State Bar Council and entitled to practice under the Advocates Act, 1961.

Issue 3: Eligibility of Government Law Officers for Appointment as District Judge
The Court addressed whether full-time government law officers (e.g., District Attorney, Additional District Attorney, Public Prosecutor, Assistant Public Prosecutor, Assistant Advocate General) are eligible for appointment as District Judges under Article 233(2). The Court held that such officers do not cease to be advocates by virtue of their employment and are eligible for appointment if they have been advocates for not less than seven years and are recommended by the High Court. The Court stated, "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)."

Conclusion:
The Supreme Court allowed the appeals, holding that the five private appellants fulfilled the eligibility criteria under Article 233(2) of the Constitution and Rule 11(b) of the Haryana Superior Judicial Service Rules on the date of application. The Court set aside the impugned judgment regarding their ineligibility.

 

 

 

 

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