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TMI Blog2013 (1) TMI 931X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esh; 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... half 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice 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 advo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llenging 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been taken by various other high courts, namely, Kerala High Court in K.R. Biju Babu v. High Court of Kerala Another[(2008) Labour Industrial Cases 1784], 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[(1986) Labour Industrial Cases 710], Allahabad High Court in Akhilesh Kumar Misra and Others v. The High Court of Judicature at Allahabad and Others[AIR (1995) Allahabad 148] 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 lay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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, thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt. 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant. 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 issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntenance 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[(2009) 8 SCC 273], 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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[Civil Appeal Nos. 947-956 of 2003, Mallaraddi H. Itagi and Ors. v. High Court of Karnataka and Ors.] 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublic 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[2010-4-L.W.454], 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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[(1995) 6 SCC 527], 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 Sama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecutor 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[295 U.S. 78] , 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 mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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)[ (2010) 6 SCC 1], the Court considered role of Public Prosecutor vis- -vis his duty of disclosure. The Court noted earlier decisions of this Court in Shiv Kumar v. Hukam Chand and Another[(1999) 7 SCC 467] and Hitendra Vishnu Thakur and Others v. State of Maharashtra and others[(1994) 4 SCC 602] and in paragraphs 185 and 186 (Pgs. 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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[(2012) 3 SCC 117], 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, 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 a recognised university; and (i) Degree of Bachelor of Law of recognised university; and ii) who has worked (ii)who has practiced at the bar for a period of not less than two years (a) for a period of not less t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectfully 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olution 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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