DEEPAK AGGARWAL v. KESHAV KAUSHIK AND OTHERS

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[R.M. LODHA, J.] With reference to the decision of this Court in Satya Narain A Singh 5 , the Karnataka High Court held as under (Pg. 88-89) : 1

"The Hon'ble Supreme Court in the case of Satya Narain Singh v. High Court of Judicature at Allahabad and Ors., 1985 (1) SCC 225, while interpreting Sub-clause (2) of Article 233 of the Constitution of India has taken the view 8 that "a person not already in service of Union or of the State" shall mean only officers in judicial service and the Judicial Officers who are already in service are not eligible for appointment in respect of the post reserved for direct recruitment under Sub-clause (2) of Article 233 of the C C_onstitution 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 D 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 E vacancies. In our view, the acceptance of such a position would lead to discrimination between the officers of the State who are in judicial serviqes on the one hand and Assistant Public Prosecutors, Senior Assistant Public Prosecutors and Public Prosecutors on the other. While F considering the contention of the learned Counsel for the petitioners that the Assistant Public Prosecutor/Senior Assistant Public Prosecutor/Public Prosecutors should be treated as practising Advocates, this Court cannot ignore the consequence of resultant incongruous situation, if such G .an argument is accepted. We are also unable to accede to the submission of the learned Counsel for the petitioners that so long as the names of the petitioners 1 to 9 are not removed from the Rolls of State Bar Council, the said petitioners would be practising Advocates. In our view, H

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A there is no merit in this submission. No doubt, Section 2(a) of the Advocates Act (hereinafter referred to as the "Act") provides that "an 'Advocate' means an Advocate entered in any roll under the provisions of Advocates Act". That does not mean the Advocate who has surrendered the B Certificate of Practice to the State Bar Council and who has suspended his practice also can be treated either as an Advocate or as a practising Advocate. May be that once a Law graduate enrolls himself as an Advocate, his name finds a place in the Rolls of the State Bar Council c till it is removed from the Rolls of the State Bar Council in terms of Clause (d) of Sub-section (3) of Section 35 of the Act. But, that does not mean a person who has suspended his practice on securing a full time appointment can still be considered as a practising Advocate. This conclusion of ours gets support from the Sub-section (4) of Section D 35 of the Act wherein it is provided that where an Advocate is suspended from practice, during the period of suspension he is debarred from practising in any Court or before any authority or person in India. Therefore, if the object of surrendering Certificate of Practice and suspending the practice is to give up the right to practice before the Court; the petitioners 1 to 9 who were required to surrender the Certificate of Practice and who have so suspended their practice, cannot in our view, be held either as Advocates or as practising Advocates. In our view, during the period of suspension of practice, such a person ceases to be an Advocate; and continuance of his name on the Rolls of Bar Council is of no consequence so far as his right to practice is concerned and such a person cannot designate himself as an Advocate. Therefore, we are of the view that the petitioners 1 to 9 not being practising Advocates on the date of submission of their applications, they are not eligible for appointment as District Judges in terms of the qualification prescribed. Therefore, the Selection Committee has, in our view, rightly rejected the claim of the petitioners 1 to 9 for appointment

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[R.M. LODHA, J.] as District Judges and they were rightly not called for interview. The petitioners cannot have any grievance on that account."

57Copy pinpoint57. The judgment of the Karnataka High Court in Mal/araddi H. Jtagt1 7 was challenged before this Court. This Court dismissed the appeals on 18.05.200918 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 Departmen_tal Promotion Committee; was amenable to disciplinary proceedings, etc. Further looking to the nature of duties of Legal Cell as stated in the regulation of business of the Board E extracted above, the appellant being a fuli-time salaried employee had/has to attend to so many duties which appear to be substantial and predominant. In short and substance we find that the appellant was/is a full-time salaried employee and his work was not mainly or exclusively to act or plead in court. Further, there may be various challenges in courts of law assailing or relating to the decisions/actions taken by the appellant himself such as challenge to issue of statutory regulation, notification, the institution/ withdrawal of any prosecution or other legal/quasi-legal proceedings etc. In a given situation the appellant may be amenable to

18. Civil Appeal Nos. 947-956 of 2003, Mallaraddi H. ltagi and ors. v. High Court of Kamataka and Ors. H

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A disciplinary jurisdiction of his employer and/or to the disciplinary jurisdiction of the Bar Council. There could be conflict of duties and interest. In such an event, the appellant would be in an embarrassing position to plead and conduct a case in a court of law. B Moreover, mere occasional appearances in some courts on behalf of the Board even if they be, in our opinion, could not bring the appellant with the meaning of "Law Officer'' in terms of para 3 of Rule 49." and has also taken a view that in a situation like this the c decision in Sushma Suri case is not applicable. We have no reason to take any different view, as had already been taken by this court, as the ~ituation is not different. It is already considered before the High Court that the appellants were holding a regular post they were having D the regular pay scale, they were considered for promotion, they were employed by the State Government Rules and therefore they were actually the Government servants when they made applications for the posts of District Judges."

58Copy pinpoint58. The decision of the Karnataka High Court in Mallaraddi H. ltag/1 7 and the judgment of this Court18 in the appeals from that decision have been heavily relied on by the respondent - successful writ petitioner.

59Copy pinpoint59. Few decisions rendered by some of the High Courts F on the point may also be noticed here. In Sudhakar Govindrao Deshpande11 , the issue that fell for consideration before the Bombay High Court was whether the petitioner therein who was serving as Deputy Registrar at the Nagpur Bench of the Bombay High Court, was eligible for appointment to the post G of the District Judge. The advertisement that was issued by the High Court inviting applications for five posts of District Judges, inter alia, stated, 'candidate must ordinarily be an advocate or pleader who has practised in the High Court, Bombay or Court subordinate thereto for not less than seven years on the 1st H October, 1980'. The Single Judge of the Bombay High Court

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[R.M. LODHA, J.] considered Articles 233, 234 and 309 of the Constitution, A relevant Recruitment Rules and noted the judgments of this Court in Chandra Mohan 4 , Satya Narain Singh 5 and Rameshwar Daya/9. It was observed as follows: " ........ the phrase "has been an Advocate or a pleader" must be interpreted as a person who has been B 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 C 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." D

60Copy pinpoint60. In Smt. Jyoti Gupta v. Registrar General, High Court of M.P., Jabalpur and Another19, Madhya Pradesh High Court was concerned with the question as to whether the Assistant Public Prosecutors were eligible to apply for appointment to the post of District Judges. The Madhya Pradesh High Court held as under: E 1 '..•... A careful reading of the note provided in the exception states that nothing in Rule 49 of the Bar Council of India Rules shall apply to a Law Officer of the Central Government, State Government or a body corporate who F is entitled to be enrolled under the rules of the State Bar Council under Section 28(2)(d) read with Section 24(1)(e) of the Advocates Act, 1961 despite his being a full-time salaried employee. Hence, the exception to Rule 49 has been provided because of the provisions in the Rules of G State Bar Council made under Section 28(2)(d) read with Section 24(1)(e) of the Advocates Act, 1961 for a Law Officer of the Central Government or the State Government or a body corporate to be admitted into the roll of the State

19. 2008 (2) MPLJ 486. H

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A Bar Council if he is required by the terms of his appointment to act and/or plead in Courts on behalf of his employer. In other words, if the rules made by the State Bar Council under Section 28(2)(d) read with Section 24(1)(e) of the Advocates Act, 1961 provide for admission B as an Advocate, enrolment in the State Bar Council as an Advocate or a Law Officer of the Central Government or the State Government or a body corporate, who, by the terms of his employment, is required to act and/or plead in Courts on behalf of his employer, he can be admitted c as an Advocate and enrolled in the State Bar Council by virtue of the provisions of Sections 24(1)(e) and 28(2)(d) of the Advocates Act, 1961 and the rules made thereunder by the State Bar Council and he does not cease to be an Advocate on his becoming such Law Officer of the Central Government, State Government or a body corporate. As D we have seen, the State Bar Council of M.P. has provided under Proviso(i) of Rule 143 that a Law Officer of the Central Government or a Government of State or a public corporation or a body constituted by a statute, who by the terms of his appointment, is required to act and/or plead in Courts on behalf of his employer, is qualified to be admitted as an Advocate even though he may be in fJ.Jll or part-time service or employment of such Central Government, State Government, public corporation or a body corporate. The position of law, therefore, has not materially altered after the deletion of the note contained in the exception under Rule 49 of the Bar Council of India Rules by the resolution of the Bar council of India, dated 22nd June, 2001.

In the result, we hold that if a person has been enrolled as H an Advocate under the Advocates Act, 1961 and has

DEEPAK AGGARWAL v., KESHAV KAUSHIK 459 [R.M. LODHA, J.] thereafter been appointed as Public Prosecutor/Assistant A 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 B 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."

61Copy pinpoint61. In K. Appadurai v. The Secretary to Government of C Tamil Nadu and Another20 , one of the questions under consideration before the Madras High Court was whether for appointment to the post of District Judge (Entry Level), the applications could have been invited from the Assistant Public Prosecutor (Grade I & II). The Division Bench of that Court D referred to Article 233 of the Constitution, Rule 49 of the BCI Rules and the decisions of this Court in Satya Narain Singh 5 , Chandra Mohan4, Sushma Suri6 , Johri Ma/1 5 and Satish Kumar Sharma7 • The Division Bench held as under: "22. In the light of the ratio laid down by the Supreme Court E in the decisions quoted hereinbefore, it can safely be concluded that the nature of duties of the Assistant Public Prosecutors is to act and plead in Courts of Law on behalf of the State as Advocates. Even after becoming Assistant Public Prosecutors they continue to practice as advocates and plead the cases on behalf of the Government and their names remained in the roll of advocates maintained by the Bar Council. As Public Prosecutors they acquired much experience in dealing criminal cases.

23. It was argued on behalf of the petitioners that the note appended to Rule 49 of the Bar Council of India ~ules having been deleted by a resolution dated 22nd June, 2001 of the Bar Council of India, the ratio decided by the

20. 2010-4-L.W. 454. H

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A Supreme Court in Sushma Suri Case (supra) will not apply, and therefore, an advocate who is employed as a full time salaried employee of the government, ceases to practice as an advocate so long as he continues in such employment. The submission made by the counsel has no B substance.

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

62Copy pinpoint62. 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.8.1., was eligible for appointment to the post of District Judge H in the Kerala State Higher Judicial Service by direct recruitment.

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[R.M. LODHA, J.]

The High Court answered the question in the negative mainly relying on amended Rule 49 of the SCI Rules and the legal position stated by this Court in Salish Kumar Sharma 7•

63Copy pinpoint63. Two more judgments of this Court may be quickly noticed here. In State of U.P. v. Ramesh Chandra Sharma and others21, this Court stated that the appointment of any legal practitioner as a District Government Counsel is only professional engagement. A two-Judge Bench of this Court in Samarendra Das, Advocate v. State of West Bengal and others2 2 was concerned with the question whether the post of Assistant Public Prosecutor was a civil post under the State of C West Bengal in terms of Section 15 of the Administrative Tribunals Act 1985. While answering the above question in the affirmative, this Court held that the post of Assistant Public Prosecutor was a civil post. The Court negated the argument that the Assistant Public Prosecutor was an officer of the Court D of Judicial Magistrate.

64Copy pinpoint64. After the arguments were concluded in these matters and the judgment was reserved, Respondent No. 1 (original writ petitioner) has circulated a judgment of the Bombay High Court in Sunanda Bhimrao Chaware & Ors. v. The High Court of E Judicature at Bombay, delivered on 17.10.2012 by the Full Bench of that Court. We are not inclined to consider this judgment for two reasons. One, the appellants had no occasion to respond to or explain that judgment. Secondly, and equally important, the aggrieved parties by that judgment, who are not F before us, may be advised to challenge the judgment. We do not intend to foreclose the rights of the parties one way or the other.

65Copy pinpoint65. Section 24 Cr.P.C. provides that for every High Court the Central Government or the State Government shall appoint G a Public Prosecutor. The Central Government or the State Government may also appoint one or more Additional Public Prosecutor for conducting in such court, any prosecution, appeal

21. (1995) 6 sec 527. H

22. (2004) 2 sec 274.

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A or other proceedings on their behalf The Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case or class of cases in any district or local area. Insofar as State Government is concerned it provides that for every district it shall appoint a Public Prosecutor and may s also appoint one or more Additional Public Prosecutors for the district. There are two modes of appointment of the Public Prosecutors, one, preparation of a panel of names of persons, who in the opinion of the District Magistrate after consultation with the Sessions Judge, are fit to be appointed as Public c Prosecutors or Additional Public Prosecutors for the district. The other, appointment of Public Prosecutor or an Additional Public Prosecutor from amongst the persons in a State where exists regular cadre of prosecuting officers. A person is eligible to be appointed as Public Prosecutor only if he has been in practise as an advocate for not less than seven years. Special 0 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.

66Copy pinpoint66. Public Prosecutor has a very important role to play in the administration of justice and, particularly, in criminal justice system. Way back on April 15, 1935 in Harry Berger v. United States of America 23 , Mr. Justice Sutherland, who delivered the opinion of the Supreme Court of United States, said about the F 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 G be done. The twofold aim of United States Attorney is that guilt shall not escape or innocence suffer. It is as much his duty to refrain from improper methods calculated to produce wrongful conviction as it is to use every legitimate means to bring about a just one.

H 23. 295 U.S. 78.

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[R.M. LODHA, J.]

67Copy pinpoint67. The Eighth United Nations Congress on the Prevention A of Crime and the Treatment of Offenders, adopted guidelines on the role of Prosecutors in 1990. lnter-alia, it states that Prosecutors shall perform their duties fairly, consistently and expeditiously and respect and protect human dignity and uphold human rights. He shall take proper account of the position of B the suspect and the victim and pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect.

68Copy pinpoint68. As a follow up action to the above guidelines on the role of Prosecutors, the International Association of Prosecutors C adopted Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors which, inter-alia, provides that Prosecutors shall strive to be, and to be seen to be, consistent, independent and impartial; Prosecutors shall preserve the requirements of a fair trial and D safeguard the rights of the accused in co-operation with the Court.

69Copy pinpoint69. European Guidelines on Ethics and Conduct for Public Prosecutors [The Budapest Guidelines] adopted in the E Conference of Prosecutors General of Europe on 31st May, 2005 are on the same !ines as above. Under the head "professional conduct in the framework of criminal proceedings". These guidelines state that when acting within the framework of criminal proceedings, Public Prosecutor should at all times carry out their functions fairly, impartially, objectively and, within the framework of the provisions laid down by law, ~ndependently; seek to ensure that the criminal justice system operates as expeditiously as possible, being consistent with the interests of justice; respect the principle of the presumption of innocence and have regard to all relevant circumstances of a case including those affecting the suspect irrespective of whether they are to the latter's advantage or disadvantage.

70Copy pinpoint70. In India, role of Public Prosecutor is no different. He has at all times to ensure that an accused is tried fairly. He H

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A should consider the views, legitimate interests and possible concern of witnesses and victims. He is supposed to refuse to use evidence reasonably believed to have been obtained through recourse to unlawful methods. His acts should always serve and protect the public interest. The State being a B Prosecutor, the Public Prosecutor carries a primary position. He is not a mouthpiece of the investigating agency. In Chapter II of the BCI Rules, it is stated that an advocate appearing for the prosecution of a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent; C he should scrupulously avoid suppression of material capable of establishing the innocence of the accused.

71Copy pinpoint71. A two Judge Bench of this Court in Mukul Dalaf2, while dealing with a question about the justifiability of the appointment by the State of Special Public Prosecutors and Assistant Public D 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.

72Copy pinpoint72. In Sidhartha Vashisht alias Manu Sharma v. State E (NCT of Delhi) 24 , the Court considered role of Public Prosecutor vis-a-vis his duty of disclosure. The Court noted earlier decisions of this Court in Shiv Kumar v. Hukam Chand and Anothei'-5 and Hitendra Vishnu Thakur and Others v. State of Maharashtra and others2 6 and in paragraphs 185 and 186 F (Pgs. 73-74) of the Report stated as under: "185. A Public Prosecutor is appointed under Section 24 of the Code of Criminal Procedure. Thus, Public Prosecutor is a statutory office of high regard. This Court has observed the role of a Prosecutor in Shiv Kumar v. G Hukam Chand [(1999) 7 SCC 467] as follows: (SCC p. 472, para 13) ·

24. (2010) 6 sec 1.

25. (1999) 7 sec 467.

H 26. (1994) 4 sec 602.

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[R.M. LODHA, J.] "13. From the scheme of the Code the legislative intention is manifestly clear that prosecution in a Sessions Court cc:.:-rnot be conducted by anyone other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a Sessions Court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the c investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the force and make it available to the accused. Even if 0 the defence counsel overlooked it, the Public Prosecutor has the added responsibility to bring It to the notice of the court if it comes to his knowledge. A private counsel, if allowed a free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case E to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor.

186. This Court has also held that the Prosecutor does not represent the investigating agencies, but the State. This F Court in Hitendra Vishnu Thakur v. State of Maharashtra [(1994) 4 SCC 602] held: (SCC pp. 630-31, para 23)

"23 . ... A Public Prosecutor is an important officer of the State Government and is appointed by the State under the G · Criminal Procedure Code. He is not a part of the investigating agency. He is an independent statutory authority. The public prosecutor is expected to independently apply his mind to the request of the H

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A investigating agency before submitting a report to the court for extension of time with a view to enable the investigating agency to complete the investigation. He is not merely a post office or a forwarding agency. A Public Prosecutor may or may not agree with the reasons given by the B 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."

C 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 D 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." E

73Copy pinpoint73. In a recent decision in Centre for Public Interest Litigation and Others v. Union of India and Others 27, the question before this Court was in respect of the appointment of a Special Public Prosecutor to conduct the prosecution on F behalf of CBI and ED in 2G Spectrum case. While dealing with the above question, the Court considered Section 2(u) and Section 24 Cr.P.C. and Section 46 of the Prevention of Money- Laundering Act, 2002 and few earlier decisions of this Court in Manu Sharma24 , Sheonandan Paswan v. State of Bihar and G Others 28 and Johri Mal 15 and it was observed that in an appointment of Public Prosecutor, the principle of maste(- servant does not apply; such an appointment is not an appointment to a civil post.

H 21. (2012) 3 sec 111.

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[R.M. LODHA, J.]

74Copy pinpoint74. The mode of appointment of Public Prosecutor A (including Additional Public Prosecutor and Special Public Prosecutor) under Section 24 Cr.P .C. and the mode of appointment of Assistant Public Prosecutor under Section 25 Cr.P.C. significantly differ. There is qualitative difference in the role and position of Public Prosecutor and Assistant Public B Prosecutor. As a matter of law, Assistant Public Prosecutor is not included in the definition of 'Public Prosecutor' under Section 2(u) Cr.P.C. In Samarendra Das22 , this Court held that the post of Assistant Public Prosecutor was a civil post. This position was accepted by a three-Judge Bench of this Court in c Johri Ma/1 5 • It was stated in Johri Ma/1 5 , " •..• a distinction is to be borne in mind between appointment of a Public Prosecutor or Additional Public Prosecutor on the one hand and Assistant Public Prosecutor on the other. So far as Assistant Public Prosecutors are concerned, they are employees of the D State ...... " As regards 'Public Prosecutor', this Court has consistently held that though Public Prosecutor is a holder of 'public office' and he holds a 'post' yet he is not in government service as the term is usually understood. Despite these differences, for the purposes of Article 233(2) there is not much E difference in a Public Prosecutor and an Assistant Public Prosecutor and both· of them are covered by the expression 'advocate'. It is so for more than one (eason. In the first place, a Public Prosecutor under Section 24 is appointed by the State Government or the Central Government for conduct of prosecution, appeal or other proceeding on its behalf in the F High Court or for a district and Assistant Public Prosecutor is appointed under Section 25 by the State Government or the Central Government to conduct prosecution on its behalf in the courts of Magistrates. So the main function of the Public Prosecutor as well as Assistant Public· Prosecutor is to act and/ G or plead on behalf of the Government in a court; both of them conduct cases on behalf of the government. Secondly and remarkably, for the purposes of counting experience as an

28. {1987) 1 sec 288. H

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A 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 B or as Assistant Public Prosecutor is deemed to be practice as an advocate.

75Copy pinpoint75. 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.-ln 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 )()()(

6. Appointing Authority.-Appointment to the posts in the service shall be made by the Director.

xxx xxx )()()(

9. Method of Recruitment.-(1) Recruitment to the G Service shall be made:-

(i) by direct recruitment; or

(ii) by promotion; or

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[R.M. LODHA, J.] xxx xxx :xxx A

11. Seniority of Members of the service.-The seniority inter se of members of the Service shall be determined by the length of their continuous service on any post in the Service. B Provided that in the case of members appointed by direct recruitment, the order of merit determined by the Commission or any other recruiting authority shall not be disturbed in fixing the seniority: c Provided further that in the case of two or more members appointed on the same date, their seniority shall be determined as follows:

(a) a member appointed by direct recruitment shall 0 be senior to a member appointed by promotion or by transfer;

xxx xxx :xxx

12. Liability to serve.-(1) A member of the Service shall E be liable to serve at any place whether within or outside the State of Haryana, on being ordered so to do by the appointing authority;

(2) A member of the Service may also be depi,ited to serve under,- F

(i) a company, an association or a body of individuals whether incorporated or not, which is wholly or substantially owned or controlled by the Government, a Municipal Committee or a local authority, within the State G of Haryana;

(ii) the Central Government or a company an association or a body of individuals whether incorporated or not, which is wholly or substantially owned or controlled H

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A by the Central Government; or

(iii) any other State Government, an international organisation, an autonomous body not controlled by the Government or a private body;

B Provided that no member of the service shall be deputed to the Central or any other State Government or any organisation or body referred to in clause (ii) and clause (iii) except with his consent.

c 13. Leave, pension or other matters.-xxx xxx

(2) No member of the Service shall have the right of private practice.

14. Discipline, penalties and appeals.-(1) in matters D relating to discipline, penalties and appeals, members of the Service shall be governed by the Punjab Civil Services (Punishment and Appeal) Rules, 1952, as amended from time to time:

E Provided that the nature of penalties which may be imposed, the authority empowered to impose such penalties and appellate authority shall, subject to the provisions of any law or rules made under Article 309 of the Constitution of India, be such as are specified in Appendix C to these rules. F (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 G 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 : H

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[R.M. LODHA, J.] "APPENDIX B" A (See Rule 7)

Qualifications and Experience Designation of post ......................................................................... . For Promotion/transfer For direct recruitment B Assistant District (i) Degree of Bachelor (i) Degree of Bachelor of Attorney of Law of a recognised Law of recognised university; and university; and

(ii) who has worked - (ii) who has practiced at the C (a) for a period of not bar for a period of not less than,. five years, less than two years as Assistant in any post in the equivalent or higher scale in any Government office; or D (b) for a period of not less than three years on an assignment (not less than that of an Assistant; involving legal work to any E Government office."

76Copy pinpoint76. Of the other appellants, Rajesh Malhotra at the time of making application was Public Prosecutor in the office of CBI. His services were governed by the General Rules and CBI F (Legal Advisers and Prosecutors) Recruitment Rules, 2002. It is not necessary to refer to these Rules in detail. Suffice it to say that a Public Prosecutor in CBI is appointed by Union Public Service Commission by direct recruitment or by promotion from in-service Assistant Public Prosecutors or by deputation from G in-service government servants. Service conditions which are applicable to any government servant or a member of civil service are applicable to such Public Prosecutor. Insofar as Dinesh Kumar Mittal is concerned, admittedly he was working as Deputy Advocate General in the State of Punjab at the time H

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A of his application. In the impugned judgment, he has been held to be full-time employee of the Punjab Government.

77Copy pinpoint77. We do not think there is any doubt about the meaning of the expression "advocate or pleader" in Article 233(2) of the B Constitution. This should bear the meaning it had in law preceding the Constitution and as the expression was generally understood. The expression "advocate or pleader" refers to legal practitioner and, thus, it means a person who has a right to act and/or plead in court on behalf of his client. There is no indication in the context to the contrary. It refers to the members of the Bar practising law. In other words, the expression "advocate or pleader'' in Article 233(2) has been used for a member of the Bar who conducts cases in court or, in other words acts and/or pleads in court on behalf of his client. In Sushma Suri6 , a three-Judge Bench of this Court construed the expression "members of the Bar'' to mean class of persons who were actually practising in courts of law as pleaders or advocates. A Public Prosecutor or a Government Counsel on the rolls of the State Bar Council and entitled to practice under the 1961 Act was held to be covered by the expression E 'advocate' under Article 233(2). We respectfully agree.

78Copy pinpoint78. In UP. State Law Officers Association 13 , 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 H

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[R.M. LODHA, J.]

before a court as an advocate for and on behalf of such A Government, such person does not cease to be an advocate. This Court went on to say that a Public Prosecutor or a Government Counsel on the rolls of the Bar Council is entitled to practice. It was laid down that test was not whether such person is engaged on terms of salary or by payment of B remuneration but whether he is engaged to act or plead on its behalf in a court of law as an advocate. The terms of · engagement do not matter at all and what matters is as to what such law officer engaged by the Government does - whether he acts or pleads in court on behalf of his employer or c otherwise. If he is not acting or pleading on behalf of his employer then he ceases to be an advocate; if the terms of engagement are such that he does not have to act or plead but does other kinds of work then he becomes a mere employee of the Government or the body corporate. The functions which 0 the law officer discharges on his engagement by the Government were held decisive. We are in full agreement with the above view in Sushma Surf.

79Copy pinpoint79. While referring to unamended Rule 49, this Court in Sushma Surf> said that Bar Council of India had understood E the expression "advocate" as one who is actually practising before courts which expression would include even those who are law officers employed as such by the Government or a body corporate. F

80Copy pinpoint80. Have the two subsequent decisions in Salish Kumar Sharma7 and Mallaraddi H. ltagi18 differed from Sushma Surf>? Is there any conflict or inconsistency in the three decisions? Satish Kumar Sharma7 and Mallaraddi H. ltagi18 are the two decisions on which very heavy reliance has been placed on G behalf of the successful writ-petitioners (respondents). In Satish Kumar Sharma 7 , which has been elaborately noted in the earlier part of the judgment, this Court found from the appointment/promotion orders in respect of the appellant

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A therein that he was required to work in the legal cell of the Secretariat of the Board. Central to the entire reasoning in Salish Kumar Sharma 7 is that being a full-time salaried employee he had/has to attend many duties and his work was not mainly and exclusively to act or plead in court. Mere B occasional appearances on behalf of the Board in some courts were not held to be sufficient to bring him within the meaning of expression 'Law Officer'. In the backdrop of nature of the office that the appellant therein held and the duties he was required to perform and in the absence of any rules framed by c the State Bar Council with regard to enrolment of a full time salaried Law Officer, he was held to be not entitled for enrolment and the exception set out in paragraphs 2 and 3 of unamended Rule 49 of the BCI Rules was not found to be attracted. In Salish Kumar Sharma 7 , this Court did apply the test that was enunciated in Sushma Surf' viz., whether a person is engaged 0 to act and/or plead in a court of law to find out whether he is an advocate. In Salish Kumar Sharma 7 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 Salish Kumar Sharma 7, 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 Salish Kumar Sharrna7 from Sushma Surf'. G

81Copy pinpoint81. In Mallaraddi H. ltag118, the appellants were actually found to be government servants when they made applications for the post of District Judges. The High Court in its judgment in Mal/araddi H. /lag117 had noticed that the appellants had H surrendered their certificate of practice and suspended their

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[R.M. LODHA, J.] practice on their appointment as Assistant Public Prosecutors/ A Senior Assistant Public Prosecutors/Public Prosecutors in terms of Karnakata Recruitment Rules. It was on this basis that Karnataka High Court held that Sushma Suri6 was not applicable to the case of the appellants. There is consonancy and congruity with the decisions of this Court in Sushma Sun"B, B Satish Kumar Sharma7 and Mallaraddi H. ltagP 6 and, in our opinion, there is no conflict or inconsistency on the principle of law.

82Copy pinpoint82. In none of the other decisions viz., Mundrika Prasad c Sinha1, Muku/ Da/aP and Kumari Shrilekha Vidyarthi3, it has been held that a Government Pleader or a Public Prosecutor or a District Government Counsel, on his appointment as a full- time salaried employee subject to the disciplinary control of the Government, ceases to be a legal practitioner. In Kumari 0 Shrilekha Vidyarthi3 while dealing with the office of District Government Counsel/ Additional District Government Counsel, it was held that the Government Counsel in the district were law officers of the State which were holders of an 'office' or 'post' but it was clarified that a District Government Counsel was not E to be equated with post under the government in strict sense. In Ramesh Chandra Sharma 2 1, this Court reiterated that the appointment of any legal practitioner as a District Government Counsel is only a professional engagement. F

83Copy pinpoint83. However, much emphasis was placed on behalf of the contesting respondents on Rule 49 of the BCI Rules which provides that an advocate shall not be a full time salaried employee of any person, government, firm, corporation or concern so long as he continues to practice, and shall, on taking· G up any such employment, intimate the fact to the Bar Council on whose roll his name appears, and shall thereupon cease to practice as an advocate so long as he continues in such employment. It was submitted that earlier in Rule 49 an exception was carved out that a 'Law Officer' of the Central H

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A Government or of a State or of a body corporate who is entitled to be enrolled under the rules of State Bar Council shall not be affected by the main provision of Rule 49 despite his being a full time salaried employee but by Resolution dated 22.6.2001 which was published in the Gazette on 13.10.2001, the Bar B 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.

84Copy pinpoint84. 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 0 '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 E of employment on terms of salary and other service conditions, such employment is not what is covered by Rule 49 as he continues to practice law but, on the other hand, if he is employed not mainly to act and/or plead in a court of law, but to do other kinds of legal work, the prohibition in Rule 49 F immediately comes into play and then he becomes a mere employee and ceases to be an advocate. The bar contained !n Rule 49 applies to an employment for work other than conduct of cases in courts as an advocate. In this view of the matter, the deletion of second and third para by the Resolution G dated 22.6.2001 has not materially altered the position insofar as advocates who have been employed by the State Government or the Central Government to conduct civil and criminal cases on their behalf in the courts are concerned.

85Copy pinpoint85. What we have said above gets fortified by Rule 43 of

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[R.M. LODHA, J.] the BCI Rules. Rule 43 provides that an advocate, who has A taken a full-time service or part-time service inconsistent with his practising as an advocate, shall send a declaration to that effect to the respective State Bar Council within time specified therein and any default in that regard may entail suspension of the right to practice. In other words, if full-time service or part- B time service taken by an advocate is consistent with his practising as an advocate, no such declaration is necessary. The factum of employment is not material but the key aspect is whether such employment is consistent with his practising as an advocate or, in other words, whether pursuant to such c employment, he continues to act and/or plead in the courts. If the answer is yes, then despite employment he continues to be an advocate. On the other hand, if the answer is in negative, he ceases to be an advocate.

86Copy pinpoint86. An advocate has a two-fold duty: (1) to protect the interest of his client and pursue the case briefed to him with the best of his ability, and (2) as an officer of the Court. Whether full-time employment creates any conflict of duty or interest for a Public Prosecutor/Assistant Public Prosecutor? We do not think so. As noticed above, and that has been consistently stated by this Court, a Public Prosecutor is not a mouth-piece of the investigating agency. In our opinion, even though Public. Prosecutor/Assistant Public Prosecutor is in full-time employ with the government and is subject to disciplinary control of the employer, but once he appears in the court for conduct of a F case or prosecution, he is guided by the norms consistent with the interest of justice. His acts always remain to serve and protect the public interest. He has to discharge his functions fairly, objectively and within the framework of the legal provisions. It may, therefore, not be correct to say that an G Assistant Public Prosecutor is not an officer of the court. The view in Samarendra Das 22 to the extent it holds that an Assistant Public Prosecutor is not an officer of the Court is not a correct view. H

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87Copy pinpoint87. 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 B 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 c above, can it be said that these appellants were ineligible for appointment to the office of Additional District and Sessions Judge? Our answer is in the negative. The Division Bench committed two fundamental errors, first, the Division Bench erred in holding that since these appellants were in full-time employment of the State Gc·1ernment/Central Government, they ceased to be 'advocate' under the 1961 Act and the BCI Rules, and second, that being a member of service, the first essential requirement under Article 233(2) of the Constitution that such person should not be in any service under the Union or the State was attracted. In our view, none of the five private appellants, on their appointment as Assistant District Attorney/Public Prosecutor/Deputy Advocate General, ceased to be 'advocate' and since each one of them continued to be 'advocate', they cannot be considered to be in the service of the Union or the State within the meaning of Article 233(2). The view of the F Division Bench is clearly erroneous and cannot be sustained.

88Copy pinpoint88. As regards construction of the expression, "if he has been for not less than seven years an advocate" in Article 233(2) of the Constitution, we think Mr. Prashant Bhushan was G right in his submission that this expression means seven years as an advocate immediately preceding the applicatit:m and not seven years any time in the past. This is clear by use of 'has been'. The present perfect continuous tense is used for a position which began at some time in the past and is still H

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[R.M. LODHA, J.] continuing. Therefore, one of the essential requirements A articulated by the above expression in Article 233(2) is that such person must with requisite period be continuing as an advocate on the date of application.

89Copy pinpoint89. Rule 11 of the HSJS Rules provides for qualifications 8 for direct recruits in Haryana Superior Judicial Service. Clause (b) of this rule provides that the applicant must have been duly enrolled as an advocate and has practised for a period not less than seven years. Since we have already held that these five private appellants did not cease to be advocate while working C as Assistant District Attorney/Public Prosecutor/Deputy Advocate General, the period during which they have been working as such has to be considered as the period practising law. Seen thus, all of them have been advocates for not less than seven years and were enrolled as advocates and were continuing as advocates on the date of the application. D

90Copy pinpoint90. We, accordingly, hold that the five private appellants (Respondent Nos. 9,12,13,15 and 18 in CWP No. 9157/2008 before the High Court) fulfilled the eligibility under Article 233(2) of the Constitution and Rule 11 (b) of the HSJS Rules on the E date of application. The impugned judgment as regards them is liable to be set aside and is set aside.

91Copy pinpoint91. Appeals are allowed as above with no order as to costs. F R.P. Appeals allowed.