Full Judgment Text
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PETITIONER:
RAMESHWAR DAYAL
Vs.
RESPONDENT:
THE STATE OF PUNJAB AND OTHERS
DATE OF JUDGMENT:
05/12/1960
BENCH:
DAS, S.K.
BENCH:
DAS, S.K.
SINHA, BHUVNESHWAR P.(CJ)
GUPTA, K.C. DAS
AYYANGAR, N. RAJAGOPALA
MUDHOLKAR, J.R.
CITATION:
1961 AIR 816 1961 SCR (2) 874
CITATOR INFO :
D 1966 SC1987 (17)
D 1985 SC 308 (2,3)
ACT:
District Judges--Eligibility for appointment--Appointment
under the Constitution--Qualifications--Period of Practice
as Advocate, if includes Period of practice in Lahore High
Court---High Courts (Punjab) Order,1947, cl. 6--Bar Councils
Act, 1926 (38 of 1926), s. 8--Constitution of India, Art.
233(2).
HEADNOTE:
The validity of the appointment of respondents 2 to 6 as
District judges was challenged in a petition filed by the
appellant under Art. 226 of the Constitution of India before
the High Court of Punjab, on the ground, inter alia, that
the appointment was made in contravention of Art. 233(2) of
the Constitution of India which lays down that "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..." The respondents had been enrolled as advocates
of the Lahore High Court on various dates between 1933 and
1940, and while respondents 2, 4 and 5 had their names on
the roll of advocates of the Punjab High Court and were
practising as advocates at the time they were appointed as
District Judges in 1950 and 1952, respondents 3 and 6 did
not have their names factually on the roll when they were
appointed as District judges in 1957 and 1958. Respondent 6
had his name so enrolled after his appointment.
Under a notification dated September 28, 1948, ss. 3 to 16
of the Bar Councils Act, 1926, came into force in respect of
the East Punjab High Court, by virtue of which a Bar Council
was constituted and a roll of advocates had to be prepared
and maintained by the High Court in accordance with s. 8 of
the Act. The proviso to sub-s. (2) of S. 8 of the Act
required them to deposit a fee of Rs. 10 payable to the Bar
Council. The appellant’s contention was that after’ the
partition of the country, which led to the establishment of
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a separate High Court for the province of East Punjab the
Punjab High Court was established only on August 15 1947,
under the High Courts (Punjab) Order, 1947, and as the
respondents did not have seven years’ standing as advocates
with reference to their right of practice in a court in
India after that date, they did not fulfil the requirements
of Art. 233(2) When they were appointed as District Judges
and, therefore, their appointments were constitutionally
invalid. The question was whether the period of seven years
referred to in Art. 233(2) must be counted as the
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standing of the advocate or pleader with reference to his
right of practice in a court in the territory of India as
defined in Art. of the Constitution, or whether any right
of practice in a court Rat, which was in India before the
partition of the country in 1947 but which was not in India
since partition, could also be taken into consideration for
the purpose of counting the period of seven years.
Held, that under cl. (6) of the High Courts (Punjab) Order,
1947, read with s. 8(3) of the Bar Councils Act, 1926, an
advocate of the Punjab High Court was entitled to count the
period of his practice in the Lahore High Court for
determining his standing at the Bar. Accordingly as
respondents 2, 4 and 5 continued to be advocates of the
Punjab High Court when they were appointed as District
judges and had a standing of more than seven years when so
appointed, they fulfilled the requirements of Art. 233(2) of
the Constitution.
Held, further, that the effect of cl. (6) of the High Courts
(Punjab) Order, 1947, and s. 8(2)(a) of the Bar Councils
Act, 1926, was that from August 15, 1947, to September 28,
1948, advocates who had been enrolled as advocates of the
Lahore High Court were recognised as advocates entitled to
practice in the Punjab High Court, and after September 28,
1948, they automatically came on the roll of advocates of
the Punjab High Court, but had to pay a fee of Rs. 10 to the
Bar Council. Consequently, respondents 3 and 6 who did not
cease to be advocates at any time or stage after August 15,
1947, continued to be advocates of the Punjab High Court
till they were appointed as District judges and had the
necessary standing of seven years to be eligible under Art.
233(2) of the Constitution.
JUDGMENT:
CIVIL APPELLATE JURISDICTION. Civil Appeal No. 438 of 1960.
Appeal by special leave from the judgment dated September
21, 1959, of the Punjab High Court, Chandigarh, in Civil
Writ No. 1050 of 1959.
A.S. B. Chari, M. S. K. Sastri and K. L. Mehta, for the
appellant.
S.M. Sikri, Advocate General.for the Punjab, N. S. Bindra,
K. L. Arora and D. Gupta for the respondent No. 1.
Gurbachan Singh. Tirth Singh Munjral and R. H. Dhebar, for
respondents Nos. 2, 3 and 5.
A. V. Viswanatha Sastri, R. Ganapathy Iyer and D. Gupta,
for respondents Nos. 4 and 6.
H. N. Sanyal, Additional Solicitor-General of India, and D.
Gupta, for the Intervener, (Union of India).
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M. K. Nambiyar, M. S. K. Sastri and K. L. Mehta, for
the Interveners (Om Dutt Sharma and B. D. Pathak).
1960. December 5. The Judgment of the Court was delivered
by
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S. leave K. DAS, J.-This is an appeal by special from an
order of the High Court of Punjab dated September 21, 1959,
by which it summarily dismissed& petition made by the
present appellant under Art. 226 of the Constitution for
certain relief,% in respect of five persons, two of whom are
now working as Additional Judges of the Punjab High Court,
the third as Officiating Judge of the same Court, the fourth
as District and Sessions Judge, Delhi, and the fifth as
Registrar, Punjab High Court, Chandigarh. Shorn of details
which are not material, the case of the appellant was and is
that the aforesaid five persons, now respondents 2 to 6
before us, were not qualified to be appointed as District
Judges under Art. 233 of the Constitution at the time when
they were so appointed by the State Government, now
respondent 1 before us, and, therefore, their appointment as
such was constitutionally invalid; and the appellant claimed
by way of his main relief that a writ in the nature of a
writ of quo warranto should issue "ousting them from their
office and restraining them from exercising the powers,
duties and functions of the posts they are holding and from
claiming any rights, privileges or emoluments attached to
their office." Certain other subsidiary or ancillary reliefs
were, also claimed details whereof need not now be stated,
We have stated that the petition was summarily dismissed by
the High Court. An application for a certificate of fitness
having failed in the High Court, the appellant asked for and
obtained special leave from this Court. on August 19, 1960.
The appeal has been contested by the State of Punjab,
respondent 1, and the other respondents of whom Shamsher
Bahadur, Harbans Singh and Gurdev Singh are Justices of the
Punjab High Court, Hans Raj Khanna is District and Sessions
Judge, Delhi,
877
and P. R. Sawhney is Registrar of the High Court. These
respondents have filed separate affidavits in reply, and
some of them have been separately represented and heard.
The Advocate-General of Punjab has appeared and contested
the appeal on behalf of respondent 1. The Union of India was
originally a party-respondent to the petition inasmuch as
the appellant had initially impugned the appointment of two
of the respondents as High Court Judges; this relief was,
however, given up during the pendency of the special leave
petition and on an application made by the appellant, the
name of the Union of India was struck off by an order dated
March 18, 1960, leaving the matter in dispute limited to the
question of the validity of the initial appointment of
respondents 2 to 6 as District Judges only. Later, the
Union of India made an application to intervene in the
appeal and in view of the circumstance that a question of
the interpretation of Art. 233 of Constitution arises in the
appeal, we have allowed the application and heard the
learned Additional Solicitor-General, even though the Union
of India did not appear at an earlier stage to contest the
application which the appellant had made, to expunge it from
the category of respondents.
The other persons B. D. Pathak and Om Dutt Sharma had also
filed a writ petition in the Punjab High Court challenging
the legality of the appointment of P. R. Sawhney who, it
appears, had acquitted certain persons in three criminal
appeals decided by him on January 22, 1959, as Additional
District and Sessions Judge, Delhi, from the decision of a
magistrate of Delhi in a case in which B. D. Pathak and Om
Dutt Sharma said that they had been assaulted by the persons
accused in the case. They filed three revision petitions in
respect of the orders passed, which are pending in the High
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Court. In view of these circumstances they have also been
allowed to intervene in the present appeal in so far as it
relates to the appointment of P. R. Sawhney, and we have
heard learned Counsel on their behalf.
878
On behalf of the respondents who are no longer working as
District Judges a preliminary objection has been taken to
the maintainability of the appeal. It has been contended
that the appeal is now limited to the question of their
appointment as District Judges and as they are no longer
holding the office of District Judge, the prayer for the
issue of a writ of quo warranto in respect of that office is
no longer maintainable. On behalf of the appellant it has
been submitted in reply that respondents 2 to 4 are not
permanent Judges of the High Court so that if and when they
revert, they must go back to their substantive posts of
District Judges; therefore, the question whether they were
validly appointed to their substantive posts is a live issue
and the appellant is entitled to ask this Court to pronounce
on that issue. The learned Advocate-General has submitted
that the State is anxious to have the decision of this Court
on the legality of the appointments made in order to avoid
future trouble and the State does not wish to raise any
preliminary objection to the determination of the question
in issue. On a careful consideration of the matter, we have
come to the conclusion that the preliminary objection must
be overruled and in the circumstances of this case, this
Court must decide on the legality of the impugned
appointments.
It would facilitate appreciation of the points in
controversy if we state first, in broad outline, the
circumstances in which respondents 2 to 6 were appointed as
District Judges.
(1)..Respondent 2 Shamshere Bahadur, J.) was called to the
Bar in England on January 26, 1933, by the Middle Temple.
He was enrolled as an Advocate of the Lahore High Court on
May 15, 1933, and practised as such in that Court. On
February 9, 1949, he was enrolled as an Advocate of the
Federal Court of India. On and after August 15, 1947, he
practised as an Advocate of the East Punjab High Court till
he was appointed as District and Sessions Judge on March
20,1950. Then he functioned as Legal Remembrancer of the
State Government from December 1953 to May 1959, when, he
was appointed as an Additional Judge of the Punjab High
Court.
879
(2)..Respondent 3 (Harbans Singh, J.) was also called to the
Bar and then enrolled as an Advocate of the Lahore High
Court on March 5, 1937. He worked as an Additional District
and Sessions Judge, s Ferozepore, from July 2, 1947 , to
February 22, 1948. He then returned to practice at Simla
for a short while. On March 15, 1948, he worked as Deputy
Custodian, Evacuee Property, till April 17, 1950. On April
18, 1950, he was appointed as District and Sessions Judge
and on August 11, 1958, he was appointed as an Additional
Judge of the Punjab High Court.
(3)..Respondent 4 (Gurdev Singh, J.) was enrolled as a
Pleader of the Lahore High Court on October 25, 1934, and
then as an Advocate of the said Court on December 20, 1938.
He was enrolled as an Advocate of the Federal Court of India
on May 29, 1948, and was continuously in practice till he
was appointed as District and Sessions Judge on February 2.
1952. On July 11, 1960, he was appointed to officiate as a
Judge of the Punjab High Court.
(4)..Respondent 5 (Hans Raj Khanna) was enrolled as a
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Pleader of the Lahore High Court on July 17, 1934, and then
enrolled as an Advocate of the said Court on December 20,
1940. He started his practice as a lawyer at Amritsar and
he continued his practice there till his appointment as
District and Sessions Judge. His name was borne on the Roll
of Advocates prepared by the East Punjab High Court when he
was appointed as District and Sessions Judge on February..1,
1952.
(5)..Respondent 6 (P. R. Sawhney) was called to the Bar on
November 17, 1930, and was enrolled as an Advocate of the
Lahore High Court on March 10, 1931. After partition he
shifted to Delhi and worked for sometime as Legal Adviser to
the Custodian, Evacuee Property, Delhi. Then lie practised
for sometime at Delhi; he then accepted service under the
Ministry of Rehabilitation as an Officer on Special Duty and
Administrator, Rajpura Township. On March 30, 1949, he
became the chairman, Jullundur Improvement Trust. On May 6,
1949, he got his licence to practise as an Advocate
suspended. On
880
April 6, 1957, he was appointed as District and Sessions
Judge.
It would thus appear that of the five respondents mentioned
above, three, namely, Shamshere Bahadur, Gurudev Singh and
Hans Raj Khanna had their names on the Roll of Advocates of
the Punjab High Court before they were appointed as District
Judges. In other words, they were practising as Advocates
at the time they were so appointed. Two of them, Harbans
Singh and P. R. Sawhney, did not have their names factually
on the Roll when they were appointed as District Judges. P.
R. Sawhney it appears, had his name so enrolled on October
20, 1959, that is, after his appointment as District Judge.
We are inviting attention to this distinction amongst the
respondents at this stage. because as will appear later this
distinction has some bearing on one of the arguments made
before us on behalf of the appellant.
We proceed now to a consideration of the main contention
urged on behalf of. the appellant, namely, that the
appointment of respondents 2 to 6 as District Judges was
made in contravention of the provisions of. Art. 233 of the
Constitution. It is convenient to read here Art. 233 of the
Constitution:
"Art. 233(1). Appointments of persons to be, and the
posting and promotion of, district judges in any State shall
be made by the Governor of the State in consultation with
the High Court exercising jurisdiction in relation to such
State.
(2)..A person not already in the service of the Union or of
the State shall only be eligible to be appointed a district
judge if he has been for not less than seven years an
advocate or, a pleader and is recommended by the High Court
for appointment."
Now, the argument of learned Counsel for the appellant has
ranged over a wide field; but the point for decision is a
narrow one and depends on whether respondents 2 to 6
fulfilled the requirements of el. (2) of Art. 233 of the
Constitution when they were appointed as District Judges by
respondent 1. That clause lays down that a person not
already in the service of the Union or of the State shall
only be eligible to be
881
appointed a district judge if (1) he has been for not less
than seven years an advocate or a pleader and (2) is
recommended by the High Court for appointment. As to the
second requirement no question arises here, because
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admittedly respondents 2 to 6 were recommended by the High
Court before their appointment. The dispute is with regard
to the first requirement. Learned Counsel for the appellant
has contended that respondents 2 to 6 did not fulfil the
requirement of having been " seven years an advocate or
pleader" and has put his argument in support of his
contention in the following way. Firstly, he has submitted
that the expression "advocate or pleader" is an expression
of legal import and must be given its generally accepted
meaning at the time the Constitution was adopted; and that
expression according to learned Counsel means an advocate or
pleader entitled to appear and plead for another in a Court
in India, but does not include an advocate or pleader of a
foreign Court; for this submission he has relied on the
definition of the expression "legal practitioners" in the
Legal Practitioners Act, 1879 (XVIII of 1879); of "pleader"
in the Civil Procedure Code, 1908 (Act V of 1908); and of
"advocate" in the Bar Councils Act, 1926 (XXXVIII of 1926).
Secondly, he has submitted that by reason of the use of the
present perfect tense "has been" in cl. (2) of Art. 233, the
rules of grammar require that the person eligible for
appointment must not only have been an advocate or pleader
before but must be an advocate or pleader at the time he is
appointed to the office of District Judge. Thirdly, he has
submitted that the period of seven years referred to in the
clause must be counted as the standing of the advocate or
pleader with reference to his right of practice in s Court,
in the territory of India as defined in Art. 1 of the
Constitution; in other words, any right of practice in a
Court which was in India before the partition of the country
in 1947 but which is not in India since partition, cannot be
taken into consideration for the purpose of counting the
period of seven years.
We shall presently consider these submissions in so
882
far as they bear on the problem before us. But before we
do so, it is necessary to explain the changes which took
place after the partition of the country and led to the
establishment of a High Court of Judicature for the province
of East Punjab (now called the Punjab High Court for the
State of Punjab) and how those changes affected the position
of advocates or pleaders who had the right to practice in
the Lahore High Court of undivided Punjab. The Independence
Act, 1947, brought into existence two independent Dominions-
India and Pakistan-and s. 9 thereof gave the Governor-
General power to make orders inter alia for bringing the
provisions of the Act into effective operation. In exercise
of that power the Governor-General made the High Courts
(Punjab) Order, 1947, which established as from the
appointed day (August 15, 1947) a High Court of Judicature
for the then Province of East Punjab. Clause 6 of the Order
is important and must be quoted in full:
"6(1) The High Court of East Punjab shall have the like
powers to approve, admit, enrol, remove and suspend
advocates, vakils and attorneys, and to make rules with
respect to advocates, vakils and attorneys as are, under the
law in force immediately before the appointed day,
exercisable by the High Court at Lahore.
(2) The right of audience in the High Court of East Punjab
shall be regulated in accordance with the like principles
as, immediately before the appointed day, are in force with
respect to the right of audience in the High Court at
Lahore:
Provided that, subject to any rule made or direction given
by the High Court of East Punjab in the exercise of the
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powers conferred by this Article, any person who,
immediately before the appointed day, is an advocate, vakil
or attorney entitled to practise in the High Court at Lahore
shall be recognised as an advocate, vakil or attorney
entitled to practise in the High Court of East Punjab."
It is also necessary to notice cl. 14 of the Order which
states inter alia that "the provisions of this Order shall
have effect subject to any provision made on or
883
after the appointed day with respect to............... the
High Court of East Punjab by any legislature or other..
authority having power to make such provision." The points
which we must emphasise here are (1) that under el. 6(2) the
seniority of advocates in the new High Court as to their
right of audience was to be regulated by the principle in
force in-the former High Court and (2) that under the
proviso to cl. 6 any person who before August 15, 1947, was
an advocate entitled to practise in the Lahore High Court
was recognised as an advocate entitled to practise in the
High Court of East Punjab, subject to any rule made or
direction given by the High Court or any provision made by
the legislature or other authority having power to make such
provision. The Bar Councils Act, 1926, except for ss. 1, 2,
17,18 and 19 did not then apply to the High Court of East
Punjab. By a notification dated September 28, 1948, the
Governor of East Punjab directed that the provisions of ss.
3 to 16 of the said Act shall come into force in respect of
the East Punjab High Court with effect from that date.
Section 3 of the Act says that for every High Court a Bar
Council shall be constituted in the manner provided by the
provisions of the Act. Section 8 of the Act says (We are
reading such portion only as is relevant for our purpose):-
"S. 8(1) No person shall be entitled as of right to practise
in any High Court, unless his name is entered in the roll of
the advocates of the High Court maintained under this Act:
Provided that nothing in this sub-section shall apply to any
attorney of the High Court.:
(2)..The High Court shall prepare and maintain a roll of
advocates of the High Court in which shall be entered the
names of-
(a)..all persons who were, as advocates, vakils or pleaders,
entitled as of right to practise in the High Court
immediately before the date on which this section comes into
force in respect thereof, and
(b)..all other persons who have been admitted to be
advocates of the High Court under this Act:
Provided that such persons shall have paid in
884
respect of enrolment the stamp duty, if any, chargeable
under the Indian Stamp Act, 1899, and a fee, payable to the
Bar Council, which shall be ten rupees in the case of
the persons referred to in clause (a), and in other cases
such amount as may be prescribed.
(3) Entries in the roll shall be made in the order of
seniority and such seniority shall be determined as follows,
namely:-
(a)..all such persons as are referred to in clause (a) of
sub-section (2) shall be entered first in the order in which
they were respectively entitled to seniority inter se
immediately before the date on which this section comes into
force in respect of the High Court; and
(b)..the seniority of any other person admitted to be an
advocate of the High Court under this Act after that date
shall be determined by the date of his admission or, if he
is a barrister, by the date of his admission or the date on
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which he was called to the Bar, whichever date is earlier:
Provided that, for the purposes of clause (b), the seniority
of a person who before his admission to be an advocate was
entitled as of right to practise in another High Court shall
be determined by the date on which he became so entitled.
(4)..The respective rights of pre-audience of advocates of
the High Court shall be determined by seniority."
It is not very clear from the record before us when the Bar
Council was actually constituted for the Punjab High Court,
but it was stated at the Bar that the first election took
place in 1950. But on January 13, 1949, the High Court made
certain rules under ss. 6 and 12 of the Act. Rule 2(1) of
tile said rules was in these terms:
"Rule 2(1). The Registrar shall classify the advocates
entered in the roll prepared under section 8, sub-section
(2), of the Indian Councils Act as follows:-
(a)..those who have or who on or before the date of election
of the members of the Bar Council of the High Court will
have, for not less than 10 years, been entitled as of right
to practise in the High Court;
885
(b)..those who other than those mentioned in clause (a),
are,or who on or before the: date of the election of members
of the Bar Council of the High Court may become entitled to
practise in the High Court."
We have, therefore two distinct periods to keep in mind.
The.first period in between August 15,1947, to September
27,1948,when the main provisions of the Bar Councils Act,
1926, were not in. force for the Punjab High Court and the
right of advocates was regulated by the, High Courts,
(punjab) Order, 1947. The second period,was from September
28, 1948 when the main provisions. of the Bar Councils Act
wore brought into force, rules were made thereunder, a Bar
Council was constituted,and a roll of Advocates was prepared
and maintained in accordance with a. 8 of the said Act. It
was in this second period that the Constitution of India
came into force on January 26, 1950.
This is the background against which we have to consider
the, argument of learned Counsel for the appellant., Even if
we assume without finally pronouncing on their correctness
that learned Counsel is right in his first two submissions,
viz., that the word " advocate" in cl. (2) of Art. 233 moans
an advocate of a Court in India and the appointee must be
such an advocate at the time of his appointment, no
objection on those grounds can be raised to the appointment
of three of the respondents who were factually on the roll
of Advocates of the Punjab High Court at. the time of their
appointment; because admittedly they were advocates in. a
Court in India and continued as such advocates the the dates
of their appointment. The only, question with regard to
them is whether they can count. in the period of seven years
their period of practice in or under the Lahore High Court.
The answer to this question is clearly furnished by cl. 6(2)
of the High, Courts (Punjab) Order, 1947, read with s. 8(3)
of the Bar Councils oils, Act, 1926. That clause lays down
that the right 1 of audience in the High Court of East
Punjab is all be regulated in
886
accordance with the principle in force in the Lahore High
Court immediately before the, appointed day. The relevant
rule in the Lahore, High Court- Rules laid down that
Advocates who are Barristers shall take precedence inter se
according to the date of,, call to the Bar; Advocates who
are not’ Barristers, according to the dates when they
became, entitled to practice in a High Court. The same
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principle applied to the East Punjab High Court,’ and an
advocate of the Lahore High Court who was recognised as an
advocate entitled to practise in the new High Court counted
his seniority on the strength of his standing in the Lahore
High Court. He did not lose that seniority, which was
preserved by the Bar Councils Act, 1926. and we see no
reasons why for the purpose of cl. (2) of Art. 233 such an
advocate should not have the same standing as he has in the
High Court where he is practising.
Learned Counsel for the appellant has also drawn our
attention to Explanation 1 to cl (3) of Art. 124, of the
Constitution relating to the qualifications for appointment
as a Judge of the Supreme Court and to the Explanation to
cl. (2) of Art. 217 relating to the qualifications for
appointment as a Judge of a High Court, and has submitted
that where the Constitution-makers thought it necessary they
specifically provided for counting the period in a High
Court which was formerly in India. Articles 124 and 217 are
differently worded and refer to an additional qualification
of citizenship which is not a requirement of Art., 233, and
we do not think that el. (2) of Art. 233 can be interpreted
in the light of Explanations added to Arts. 124 and 217.
Article 233 is a self contained provision regarding the
appointment of District Judges. As to a person who is
already in the serve of the Union or of the State, no’
special qualifications are laid down and under el. (1) the
Governor can appoint such a person as a district judge in
consultation with the relevant High Court. As to a person
not already in service, a qualification is laid down in el.
(2) and all that is required is that he should be an
advocate or pleader of seven years’ standing. The
887
clause does not say how that standing must be reckoned and
if an Advocate of the Punjab High Court is entitled to count
the period of his practice in the Lahore High Court for
determining his standing at the Bar, we see nothing in Art.
233 which must lead to the exclusion of that period for
determining his eligibility for appointment as district
judge.
What will be the result if the interpretation canvassed for
on behalf of the appellant is accepted ? Then, for seven
years beginning from August 15, 1947, no member of the Bar
of the Punjab High Court would be eligible for appointment
as district judge a result which has only to be stated to
demonstrate the weakness of the argument. We have proceeded
so far on the first two submissions of learned Counsel for
the appellant, and on that basis dealt with his third
submission. It is perhaps necessary to add that we must not
be understood to have decided that the expression ’has been’
must always mean what learned Counsel for the appellant says
it means according to the strict rules of grammar. ’It may
be seriously questioned if an organic Constitution must be
so narrowly interpreted, and the learned Additional
Solicitor-General has drawn our attention to other Articles
of the Constitution like Art. 5(c) where in-the context the
expression has a different meaning. Our attention has also
been drawn to the decision of the Allahabad High Court in
Mubarak Mazdoor v. K. K. Banerji (1) where a different
meaning was given to a similar expression occurring in the
proviso to sub-s. (3) of s. 86 of the Representation of the
People Act, 1951. We consider it unnecessary to pursue this
matter further because the respondents.We are now consider-
ing continued to be advocates of the Punjab High Court
when they were appointed as district judges and they had a
standing of more than seven years when so appointed. They
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were clearly eligible for appointment under cl. 2 of Art.
233 of the Constitution.
We now turn to the other two respondents (Harbans Singh and
P. R. Sawhney) whose names were not
(1) A.I.R. 1958 All. 323.
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factually on the roll of Advocates at the time they were
appointed as district judge& What is their position? We
consider that they also fulfiled’ the requirements of Art.
233 of the Constitution. Harbans Singh was in service of
the State at the time of his appointment, and Mr.
Viswanantha Sastri appearing for him has submitted that ;el.
(2) of Art. 233 did not apply. We consider that even if we
proceed on the footing that both these persons were
recruited from the Bar and their appointment has to be
tested by the requirements of el. (2), we must hold that
they fulfilled those requirements. They were Advocates
enrolled in the Lahore High Court; this is not disputed.
Under cl. 6 of the High Courts (Punjab) Order, 1947, they
were recognised as Advocates entitled to practise in the
Punjab High Court till the Bar Councils Act, 1926, came into
force. Under s. 8 (2)(a) of that Act it was the duty of the
High Court to prepare and maintain a roll of advocates in
which their names should have been entered on the day on
which s 8 came into force, that is, on September 28, 1948.
The proviso to sub-s. (2) of s. 8 required them to deposit a
fee of Rs. 10 payable to the Bar Council. Obviously such
payment could hardly be made before the Bar Council was
constituted. We do not agree with learned Counsel for the
appellant and the interveners (B. D. Pathak and Om Dutt
Sharma) that, the proviso had the effect of taking away the
right which these respondents had to come automatically on
the roll of advocates under s. 8(2)(a) of the Act. We
consider that the combined effect of cl. 6 of the High
Courts (Punjab) Order, 1947, and s. 8(2)(a) of the Bar
Councils Act 1926, was this: from August 18, 1947, to
September 28,,1948, they were recognised as Advocates
entitled to practise in the. Punjab High Court and after
September 28, 1948, they automatically came on the roll of
advocates of the Punjab High Court but had to pay a fee of
Rs. 10 to the Bar Council. They did not cease to be
advocates at any time or stage after August 15, 1947, and
the* continued to be advocates of the Punjab High Court till
they were appointed as District Judges.They also had the
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necessary standing of seven years to be eligible, under el.
(2) of Art. 233 of the Constitution.
These conclusions really dispose of the appeal. We may
state, however, that ’an alternative argument based on s. 4
of the Legal Practitioners Act, 1879, was also presented
before us on behalf of these respondents. The argument was
that the respondents having been enrolled as advocates in
the Lahore High Court were entitled to practise in any
subordinate Court in India, and that right was not taken
away even after the Lahore High Court ceased to be a High
Court in the territory of India under the Constitution. As
we are resting our decision on conclusions drawn from the
High Courts (Punjab) Order, 1947, and s. 8 of the Bar
Councils Act, 1926, we consider it unnecessary to examine
the alternative argument based on s. 4 of the Legal
Practitioners Act, 1879.
The appellant had devoted a large part of his writ petition
to support a contention that the appointment of the
respondent was bad, because it contravened certain statutory
service Rules. It was stated by the appellant that in the
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Punjab the judicial branch of superior appointments
consisted of 27 posts inclusive of eight listed posts; two
out of these eight listed posts were reserved for the
members of the Bar and six for members of the subordinate
judicial service. On the partition of the Province, it was
stated, eleven superior judicial posts were allotted to East
Punjab, and the number was later increased to twelve. Out
of these twelve posts, the appellant contended, onethird was
reserved for the members of the Bar, onethird for what was
called the Provincial Civil Service (Judicial’Branch) and
the rest for recruitment from either of the aforesaid two
sources on merit. The grievance of the appellant is that,
too many persons have been recruited from the Bak to the
detriment of the members of the service to which the
appellant belongs.
We asked learned Counsel for the appellant to point out to
us any particular statutory rule which has been contravened
by respondent 1 in making the appointments. Learned Counsel
was unable to point
890
out any such statutory rule and except making a general
grievance that too many persons have been recruited from the
Bar, he was unable even to substantiate that the one-third
reservation made in favour of the service members has been
violated. In any case, unless there is clear proof of a
breach of a statutory rule in making any of the appointments
under consideration here, the point does not merit any
discussion. Such proof is singularly lacking in this case.
In the result, the appeal fails and is dismissed with costs.
Appeal dismissed.