DEEPAK AGGARWAL v. KESHAV KAUSHIK AND OTHERS

The Judgment of the Court was delivered by E R.M. LODHA, J. 1. 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)? Whather a District Attorney/Additional District Attorney/Public Prosecutor/Assistant Public Prosecutor/ F 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? G These are the questions which have been raised for consideration in this group of appeals.

2Copy pinpoint2. 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. H

DEEPAK AGGARWAL v. KESHAV KAUSHIK 413 [R.M. LODHA, J.]

The Divi~ion 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/ D 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 E 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. F 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 G 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. H

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A (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."

3Copy pinpoint3. The appellants in this group of seven appeals are, B 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. c

4Copy pinpoint4. 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 D 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 E 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 F 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.

5Copy pinpoint5. Based on the recommendation of the High Court, the G 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 H

DEEPAK AGGARWAL v. KESHAV KAUSHIK 415 [R.M. LODHA, J.] Advocate General have been quashed holding that they did not A 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.

6Copy pinpoint6. Article 233 of the Constitution of India provides for appointment of District Judges. It reads as follows: 8

"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 C 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 · o Court for appointment."

7Copy pinpoint7. Haryana Superior Judicial Service Rules, 2007 (for short, 'HSJS Rules') regulate the appointment of subordinate judges in the State of Haryana. Part Ill of these Rules deals with method of recruitment. Rules 5, 6 and 11 of the HSJS Rules are relevant E 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,- F (i) by promotion from amongst the Haryana Civil Service (Juaicial Branch) in consultation with the High Court; and (ii) by direct recruitment from amongst eligible Advocates on the recommendations of the G 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 H

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A 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 B 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 c 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: F (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; G (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."

8Copy pinpoint8. It will be convenient at this stage to refer to some other H provisions which have bearing in the matter and are relevant

DEEPAK AGGARWAL v. KESHAV KAUSHIK 417 [R.M. LODHA, J.] for the purpose of these appeals. Section 2(u) of the Code of A . 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: B "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 C 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 0 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 inore Additional Public Prosecutors for the district: E 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 F Sessions Judge, prepare, a pan.el of names of persons, who are, in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district. G (5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Pu.blic Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub- section (4). H

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A (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: B 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 c 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 D 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 E 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- F 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 G 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." H

DEEPAK AGGARWAL v. KESHAV KAUSHIK 419 [R.M. LODHA, J.] (9) For the purposes of sub-section (7) and sub~section A (8), the period during which a person has been in practice, as a pleader,, .or has rendered (whether before or after the commencement ofthis Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, B by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate."

9Copy pinpoint9. Some of the States have amended Section 24 Cr.P.C. Insofar as Haryana is concerned, an explanation has been C 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 D Prosecuting Officers.

10Copy pinpoint10. 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 E 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 F 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 G 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 H

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A Advocate General for the State while performing the functions of public prosecutor shall not be covered by Section 25A.

11Copy pinpoint11. 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 B 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.

12Copy pinpoint12. 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.

13Copy pinpoint13. Prior to Indian Advocates Act, 1961, [The Indian] Bar Councils Act, 1926 (for short, '1926 Act') dealt with the functions o 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.

14Copy pinpoint14. Section 8(1) of the 1926 Act provided as under: E "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: F Provided that nothing in this sub-section shall apply to any attorney of the High Court."

15Copy pinpoint15. Section 9 of the 1926 Act dealt with qualifications and admission of advocates while Section 14 provided for right of advocates to practice. G

16Copy pinpoint16. 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 H

DEEPAK AGGARWAL v. KESHAV KAUSHIK 421 [R.M. LODHA, J.] person shall be enrolled as an advocate on the roll of more than A one State Bar Council. Section 24 provides for the eligibility of the persons who may be admitted as advocates on Sta,te 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 B Bar Council under Chapter Ill. Section 28 empowers a State Bar Council to make rules to carry out the purposes of Chapter Ill. 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 c 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 0 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. E

17Copy pinpoint17. 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 0). 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

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A 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 B 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 c 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 D 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. E 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.

18Copy pinpoint18. By resolution dated 22.06.2001, the Bar Council of F 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: G "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 H

DEEPAK AGGARWAL v. KESHAV KAUSHIK 423 [R.M. LODHA, J.] to practise as an advocate so long as he continues in such A employment".

19Copy pinpoint19. The High Court has held, and in our view rightly, that the consent of Chief Ju$tice 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 13 in the Government Gazette on 13.10.2001.

20Copy pinpoint20. 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 C 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.

21Copy pinpoint21. The High Court referred to various decisions including o decisions of this Court in Mundrika Prasad Sinha v. State of Bihar1, Mukul Dalal and others v. Union of India and Others2, Kumari Shrilekha Vidyarthi and Others v. State of U.P. and . Others3, Chandra Mohan v. State of U.P. and Others", Satya Narain Singh v. High Court of Judicature at Allahabad and E Others 5, Sushma Suri v. Government of National Capital Territory of Delhi and Another6, 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 F Desh Raj Chalia were ineligible at the time of their appointment

1. AIR 1979 SC 1871.

2. (19881) 3 sec 144.

3. (1991) 1 SC 212. G

4. AIR 1966 SC 1987.

5. (1985) 1 sec 225. · 6. (1999) 1 sec 330.

1. c2001) 2 sec 365.

8. c2003) 6 sec 111. H

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A 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/ B 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 c 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 D 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."

22Copy pinpoint22. 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 G Assistant District Attorneys/Public Prosecutors.

23Copy pinpoint23. 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 H Government Pleader does not render a person ineligible for

DEEPAK AGGARWAL v. KESHAV KAUSHIK 425 [R.M. LODHA, J.] appointment as a District Judge if he has been for not less than A 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- B 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 c 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 0 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 E 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' F 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. ·· G

25Copy pinpoint25. 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 H

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A 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 Sharma 7 and Sushma B 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 c Government Pleader discharges.

26Copy pinpoint26. 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' D 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 E 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.

27Copy pinpoint27. Mr. AK. 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' G occurring in Article 233(2) of the Constitution.

28Copy pinpoint28. 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

DEEPAK AGGARWAL v. KESHAV KAUSHIK 427 [R.M. LODHA, J.] 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 Others9 , Chandra Mohan 4 and Satya Narain Singh 5 • Learned senior counsel argued that Section 24, Cr.P.C. is the source of power for appointment of the Public B 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 c counsel submitted that i;I 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 0 practice. He heavily relied upon the observations made by this Court in paragraphs 6, 10 and 11 of the decision in Sushma Surf' 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.

29Copy pinpoint29. 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.

9. AIR 1961 SC 816. H

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A would automatically come to an end. Such an interpretation of Rule 49 of the BCI Rules would not be proper.

30Copy pinpoint30. 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. B 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.

31Copy pinpoint31. Mr. S.S. Ray, learned counsel appearing for one of the C 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 D 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 E 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 F 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.

32Copy pinpoint32. Mr. Raju Ramchandran, learned senior counsel appeared for the High Court of Punjab and Haryana on G 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 H

DEEPAK AGGARWAL v. KESHAV KAUSHIK 429 [R.M. LODHA, J.] advocates as they continue to have their licence. Rule 49 per A 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 B 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 t!'lst enunciated in Sushma Suri6 , namely, whether he is engaged to act or plead on behalf of the employer in a court of law as c an advocate should be applied to find out whether the private appellants whose appointments have been cancelled met the prescribed eligibility or not.

33Copy pinpoint33. Learned senior counsel sought to distinguish the decision of this Court in Malfaraddi H. ltagi & Ors. v. High D 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. .,

34Copy pinpoint34. 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.

35Copy pinpoint35. 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 r H

p. 430

A expression, "if he has been for not less than seven years an advocate" must be read to mean seven years immediately preceding his appointmenU 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 B 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).

36Copy pinpoint36. Mr. Prashant Bhushan contended that a Public C 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 D 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 E justified the view of the High Court.

37Copy pinpoint37. 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 F 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.

38Copy pinpoint38. 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

DEEPAK AGGARWAL v. KESHAV KAUSHIK 431 [R.M. LODHA, J.] conjoint reading of these provisions with Rules 43 to 49 of the A 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 B District Attorney is a whole time employee drawing regular salary, he will not be entitled to be enrolled as an advocate.

39Copy pinpoint39. 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. Jtagi. Reference C was also made to the decision of the Karnataka High Court in Mal/araddi H. ltagi 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, D namely, Kerala High Court in K.R. Biju Babu v. High Court of Kera/a & Another10, 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 E Others11 , Allahabad High Court in Akhilesh Kumar Misra and Others v. The High Court of Judicature at Allahabad and Others12 Rajasthan High Court in Pawan Kumar Vashistha v. High Court of Judicature for Rajasthan, Jodhpur and Another decided on 21.02.2012. F

40Copy pinpoint40. 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 G and submitted that the findings returned by the High Court were in accord with law.

10. (2008) Labour & Industrial Cases 1784.

11. (1986) Labour & Industrial Cases 710.

12. AIR (1995) Allahabad 148. H

p. 432

41Copy pinpoint41. 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 B 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 c 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 p:eader who continues to be so at the time of his appointment.

42Copy pinpoint42. 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) G 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 Mohan 4 •

43Copy pinpoint43. In the case of Chandra Mohan4 the facts were these: during 1961 and 1962, the Registrar of the Allahabad High H Court called for applications for recruitment with regard to ten

DEEPAK AGGARWAL v. KESHAV KAUSHIK 433 [R.M. LODHA, J.]

vacancies in the Uttar Prade"sh Higher Judicial Service from A 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 B 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, c 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 0 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: H

p. 434

A "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, B 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 c 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." D 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 Judg~, 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

DEEPAK AGGARWAL v. KESHAV KAUSHIK 435 [R.M. LODHA, J.] 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 Cf. (2) of Art. 233 two sources are given, namely, (i) persons in the service of the Union or of the B 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 c 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 0 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 tile 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 H

p. 436

A 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 B 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) c 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 : D "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 E 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." F 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." G 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

DEEPAK .AGGARWAL v. KESHAV KAUSHIK 437 [R.M. LODHA, J.]

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 B 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. c 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 0 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 . E 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."

44Copy pinpoint44. The Constitution Bench in Chandra Mohan4 has thus F clearly held that the expression 'the service' in Article 233(2) means the judicial service.

45Copy pinpoint45. In Satya Narain Singh 5 , 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 G Daya/9 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 H

p. 438

A 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 B 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 c 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 D 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 E same ship cannot sail both the streams simultaneously ............ .". After referring to Chandra Moharr4, this Court in paragraph 5 (pg. 230) stated as under : F "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 G 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 H

DEEPAK AGGARWAL v. KESHAV KAUSHIK 439 [R.M. LODHA, J.] Subordinate Judiciary contrary to Article 14 and Article 16 A of the Constitution."

46Copy pinpoint46. 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.

47Copy pinpoint47. The question that has been raised before us is whether D 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. E

48Copy pinpoint48. 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 F 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 G 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, H

p. 440

A 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."

49Copy pinpoint49. In State of UP. and Others v. UP. State Law Officers Association and Others13, 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 C 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: D "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 E 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 F 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 G 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

H 13. (1994) 2 sec 204.

DEEPAK AGGARWAL v. KESHAV KAUSHIK 441 [R.M. LODHA, J.] employee but was a professional practitioner engaged to A 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 B 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."

50Copy pinpoint50. In S.B. Shahane and Others v. State of Maharashtra and another14, this Court held in para 12 (Pg. 43) as under: G "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,

14. 1995 Supp (3) sec 37. H

p. 442

A 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 B 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 c 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 D 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 E · 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 F 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 G 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."

51Copy pinpoint51. In Sushma Surf, a three-Judge Bench of this Court H considered the meaning of the expression "advocate" occurring

DEEPAK AGGARWAL v. KESHAV KAUSHIK 443 [R.M. LODHA, J.]

in Article 233 (2) of the Constitution and unamended Rule 49 A 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 E 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 F 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. G 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 H

p. 444

A 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." B 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 c 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

" '

DEEPAK AGGARWAL v. KESHAV KAUSHIK 445 [R.M. LODHA, J.]

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."

52Copy pinpoint52. The authority most strongly relied on for the appellants is the decision of this Court in Sushma Surf. 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 C Suri6 has no application. We shall deal with this aspect a little later.

53Copy pinpoint53. In Salish Kumar Sharma7 , the facts were these : the appellant was initially appointed as Assistant (Legal) by the 0 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 E 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 F 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)- G 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 H

p. 446

A 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 B 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 c 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: D (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 E 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 F after promotions, a wing in the Secretaricit 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 G 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: H

DEEPAK AGGARWAL v. KESHAV KAUSHIK 447 [R.M. LODHA, J.] "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: (1) 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_h_e · contiJlues in such employment; C (i1) 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 H

p. 448

A 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 Surf' 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 8 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 c 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· o 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."

54Copy pinpoint54. In State of U.P. & Another v. Johri Mar 5 , a three-Judge E 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 H 1s. (2004) 4 sec 714.

~DEEPAK AGGARWAL v. KESHAV KAUSHIK 449 [R.M. LODHA, J.] having regard to various provisions contained in the Code A 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 .B 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 C 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. D

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." ·

55Copy pinpoint55. In Mahesh Chandra Gupta v. Union of India and Others16, with reference to the provisions contained in the Legal 1a. (2009) a sec 273. H

p. 450

A 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. B 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 c 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."

56Copy pinpoint56. The Karnataka High Court in Ma/laraddi H. ltagi and Others v. The High Court of Karnataka, Bangalore and Another17 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, F 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 Singh 5 • The High Court held that having regard to the provisions in the Karnataka Recruitment Rules, the petitioners were civil G 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):

H 17. 2002 (4) Karnataka Law Journal 76.

DEEPAK AGGARWAL v. KESHAV KAUSHIK 451 [R.M. LODHA, J.]

'The petitioners 1 to 9 came to be appointed as Assistant A Public Prosecutors/Senior Assistant Public Prosecutors/ Pubiic 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 B 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 E 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 F 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 G 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 H

p. 452