DEEPAK AGGARWAL vs. KESHAV KAUSHIK .

REPORTABLE

Deepak Aggarwal …… Appellant Vs. Keshav Kaushik and others …… Respondents WITH CIVIL APPEAL NOS. 562-567 OF 2013 (Arising out of SLP(C) Nos. 17723-17728 of 2010) CIVIL APPEAL NOS. 568-572 OF 2013 (Arising out of SLP(C) Nos. 17793-17797 of 2010) CIVIL APPEAL NOS. 573-578 OF 2013 (Arising out of SLP(C) Nos. 17366-17371 of 2010) CIVIL APPEAL NOS. 579-584 OF 2013 (Arising out of SLP(C) Nos. 21344-21349 of 2010) JUDGMENT CIVIL APPEAL NOS. 585-590 OF 2013 (Arising out of SLP(C) Nos. 23205-23210 of 2010) CIVIL APPEAL NOS. 591-596 OF 2013 (Arising out of SLP(C) Nos. 32273-32278 of 2011) JUDGMENT R.M. LODHA, J. Leave granted. What is the meaning of the expression ‘the service’ in Article 233(2) of the Constitution of India? What is meant by 1 Page 1 ‘advocate’ or ‘pleader’ under Article 233(2)? Whether a District Attorney/Additional District Attorney/Public Prosecutor/Assistant Public

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? These are the questions which have been raised for consideration in this group of appeals. 2. The above questions and some other incidental questions in these appeals have arisen from the judgment of the Punjab and Haryana High Court delivered on 18.05.2010. The Division Bench of the High Court by the above judgment disposed of 12 writ petitions wherein challenge was laid to the selection and appointment of certain candidates to the post of JUDGMENT 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; 2 Page 2

(D) Order dated 22.09.2008 (Annexure P-8 in CWP No. 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 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. (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.” JUDGMENT 3. The appellants in this group of seven appeals are, 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. 4. 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 3 Page 3 Sessions Judge. The written examinations were conducted pursuant to the said notification wherein 64 candidates were recommended for the

and Sessions Judge in the State of Haryana 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 in the State of Haryana, Rajesh Malhotra was working as Public Prosecutor in the office of Central Bureau of Investigation and Dinesh Kumar Mittal was working as Deputy Advocate General in the office of the Advocate General, Punjab. 5. Based on the recommendation of the High Court, the State of JUDGMENT Haryana issued appointment orders. Some of the unsuccessful candidates filed writ petitions before the High Court raising diverse grounds of challenge. However, as indicated above, the appointments of five appellants who were working as Assistant District Attorney/Public Prosecutor/Deputy Advocate General have been quashed holding that they did not have the requisite criteria to qualify for the recruitment as contemplated in Article 233 of the Constitution and that some of the candidates did not have requisite experience. 4 Page 4 6. Article 233 of the Constitution of India provides for appointment of District Judges. It reads as follows:

(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.” 7. Haryana Superior Judicial Service Rules, 2007 (for short, ‘HSJS Rules’) regulate the appointment of subordinate judges in the State of Haryana. Part III of these Rules deals with method of recruitment. Rules 5, 6 and 11 of the HSJS Rules are relevant for the purposes of consideration of these appeals and they read as under : JUDGMENT “R.5. Recruitment to the Service shall be made by the Governor,— (i) by promotion from amongst the Haryana Civil Service (Judicial Branch) in consultation with the High Court; and (ii) by direct recruitment from amongst eligible Advocates on the recommendations of the 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 Judges (Senior Division)/Chief Judicial Magistrates/Additional Civil Judges (Senior Division) 5 Page 5 on the basis of principle of merit-cum-seniority and passing a suitability test;

(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 : (a) must be a citizen of India; (b) must have been duly enrolled as an JUDGMENT Advocate and has practiced for a period not less than seven years; (c) must have attained the age of thirty five years and have not attained the age of st forty five years on the 1 day of January of the year in which the applications for recruitment are invited.” 8. It will be convenient at this stage to refer to some other provisions which have bearing in the matter and are relevant for the purpose of these appeals. Section 2(u) of the Code of Criminal Procedure, 6 Page 6 1973 (for short, ‘Cr.P.C.’) defines ‘Public Prosecutor’ to mean any person appointed under Section 24 and includes any person acting under the

“ 24. Public Prosecutors,— (1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for conducting in such court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be. (2) The Central Government may appoint one or more Public Prosecutors for the purpose of conducting 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 more Additional Public Prosecutors for the district: 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 Sessions Judge, prepare, a panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district. (5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4). (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: 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 prepared by the District Magistrate under sub-section (4). JUDGMENT 7 Page 7

"Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section." (9) For the purposes of sub-section (7) and sub-section (8), the period during which a person has been in practice, as a pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate.” JUDGMENT 9. Some of the States have amended Section 24 Cr.P.C. Insofar as Haryana is concerned, an explanation has been added to sub-section (6) of Section 24 with effect from 29.11.1985 which provides that for the purpose of sub-section (6), the persons constituting the Haryana State Prosecution Legal Service (Group A) or Haryana State Prosecution Legal 8 Page 8 Service (Group B) shall be deemed to be a regular Cadre of Prosecuting Officers.

brought in the Cr.P.C. by Act 25 of 2005. It, inter alia, provides that the State Government may 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 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 JUDGMENT and Special Public Prosecutor appointed by 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 Advocate General for the State while performing the functions of public prosecutor shall not be covered by Section 25A. 9 Page 9 11. Section 2(7) of the Code of Civil Procedure, 1908 (for short, ‘CPC’) defines ‘government pleader’. According to this provision,

the CPC on the government pleader and also any pleader acting under the directions of the government pleader. 12. 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. 13. Prior to Indian Advocates Act, 1961, [The Indian] Bar Councils Act, 1926 (for short, ‘1926 Act’) dealt with the functions 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 JUDGMENT roll of advocates of a High Court under the provisions of that Act. 14. Section 8(1) of the 1926 Act provided as under: “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: Provided that nothing in this sub-section shall apply to any attorney of the High Court.” 10 Page 10 15. Section 9 of the 1926 Act dealt with qualifications and admission of advocates while Section 14 provided for right of advocates to practice. 16. On constitution of the State Bar Council under the Advocates Act, 1961 (for short, ‘1961 Act’), the relevant provisions of the 1926 Act stood repealed. Section 17 of the 1961 Act provides that every State Bar Council shall prepare and maintain a roll of advocates. It further provides that no person shall be enrolled as an advocate on the roll of more than one State Bar Council. Section 24 provides for the eligibility of the persons who may be admitted as advocates on State roll. Inter alia, it states that a person shall be qualified to be admitted as an advocate on a State roll if he fulfills such other conditions as may be specified in the rules made by the State Bar Council under Chapter III. Section 28 empowers a State Bar JUDGMENT Council to make rules to carry out the purposes of Chapter III. Clause (d), sub-section (2) of Section 28 states that such rules may provide for the conditions subject to which a person may be admitted as an advocate on the State roll. Chapter IV 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 a provision that except as 11 Page 11 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

under the Act. 17. 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 (j). 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 JUDGMENT 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 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 12 Page 12 of licence to practice. Prior to 2001, Rule 49 of the BCI Rules read as under :

Nothing in this rule shall apply to a Law Officer of the Central Government or a State or of any Public Corporation or body constituted by statute who is entitled to be enrolled under the rules of his State Bar Council made under Section 28(2)(d) read with Section 24(1)(e) of the Act despite his being a full time salaried employee. Law Officer for the purpose of this Rule means a person who is so designated by the terms of his appointment and who, by the said terms, is required to act and/or plead in courts on behalf of his employer. 18. By resolution dated 22.06.2001, the Bar Council of India deleted the second and third para of the above rule. The said resolution JUDGMENT was published in the Government Gazette on 13.10.2001. The Chief Justice of India gave his consent to the said deletion on 23.04.2008. Rule 49 in its present form, consequent on amendment, reads as under: “An advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practice, and shall, on taking up any employment, intimate the fact to the Bar Council on whose roll his name appears, and shall thereupon cease to practise as an advocate so long as he continues in such employment”. 13 Page 13 19. The High Court has held, and in our view rightly, that the consent of Chief Justice of India was not needed because rule in respect

13.10.2001 . 20. 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 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. 21. The High Court referred to various decisions including 1 decisions of this Court in Mundrika Prasad Sinha v. State of Bihar , Mukul JUDGMENT 2 Dalal and others v . Union of India and Others , Kumari Shrilekha Vidyarthi 3 and Others v . State of U.P. and Others , Chandra Mohan v. State of U.P. 4 and Others , Satya Narain Singh v. High Court of Judicature at Allahabad 5 and Others , Sushma Suri v. Government of National Capital Territory of 6 7 Delhi and Another , Satish Kumar Sharma v. Bar Council of H.P. , Sunil 1 AIR 1979 SC 1871 2 (1988) 3 SCC 144 3 (1991) 1 SCC 212 4 AIR 1966 SC 1987 5 (1985) 1 SCC 225 6 (1999) 1 SCC 330 7 (2001) 2 SCC 365 14 Page 14 8 Kumar Goyal v. Rajasthan Public Service Commission and finally held that Dinesh Kumar Mittal, Rajesh Malhotra, Deepak Aggarwal, Chandra

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/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 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 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.” JUDGMENT 22. The High Court also held that except Rajesh Malhotra, the other four, namely, Dinesh Kumar Mittal, Deepak Aggarwal, Chandra Shekhar and Desh Raj Chalia were having less than seven years of 8 (2003) 6 SCC 171 15 Page 15 practice at the Bar before their engagement as Assistant District Attorneys/Public Prosecutors.

a self-contained Code. Service of a Public Prosecutor or an Assistant Public Prosecutor or a Government Pleader does not render a person ineligible for appointment as a District Judge if he has been for not less than seven years an advocate 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-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 JUDGMENT 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 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 Act and the BCI Rules, including Rule 49 , must be read harmoniously with the 16 Page 16 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,

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’ 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. 25. Mr. P.P. Rao, learned senior counsel submitted that it could JUDGMENT 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 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 7 6 down by this Court in Satish Kumar Sharma and Sushma Suri must be applied, i.e. whether a person is engaged to act and/or plead in a court of 17 Page 17 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

26. The contention of Mr. P.P. Rao is that the BCI Rules cannot override the operation of any law made by the Parliament, including the CPC or the Cr.P.C., much less Article 233(2) of the Constitution which contains the word ‘advocate’ having a definite meaning i.e., person enrolled as a member of the Bar to conduct cases in courts. He highlighted the consistent practice before the Constitution and after the Constitution of the Government Pleaders and Public Prosecutors on regular or permanent basis with fixed emoluments being appointed as District Judges by way of direct recruitment in view of their experience in JUDGMENT conducting government cases. He submitted that to declare them ineligible would defeat the object of recruitment underlying Article 233(2) of the Constitution. 27. Mr. A.K. Ganguli, learned senior counsel appearing in the appeals preferred by Dinesh Kumar 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 18 Page 18 understood by the term ‘advocate’ occurring in Article 233(2) of the Constitution.

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 than seven-years. The requirement of practice for not less than seven-years is only for the appointment by nomination. He relied upon 9 decisions of this Court in Rameshwar Dayal v. State of Punjab and others , 4 5 Chandra Mohan and Satya Narain Singh . Learned senior counsel argued that Section 24, Cr.P.C. is the source of power for appointment of the Public Prosecutor/Additional Public Prosecutor either as part of the regular service cadre or from the panel prepared by the District Magistrate. The JUDGMENT 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 counsel submitted that a 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 practice. He heavily relied upon the 9 AIR 1961 SC 816 19 Page 19 observations made by this Court in paragraphs 6, 10 and 11 of the 6 decision in Sushma Suri and submitted that principles laid down therein

being selected by nomination to the post of District Judge from amongst the law practitioners. 29. 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. JUDGMENT If a Public Prosecutor forming part of service cadre, ceases to be an advocate then his tenure as a Public Prosecutor under Section 24, Cr.P.C. would automatically come to an end. Such an interpretation of Rule 49 of the BCI Rules would not be proper. 30. Learned senior counsel also challenged the finding recorded by the High Court with regard to appellant Desh Raj Chalia that he did not complete seven years of law practice. According to him, his tenure as Assistant District Attorney was required to be counted for the purpose of 20 Page 20 computing period of practice and the appellant had completed more than 11 years of law practice.

the position of the appellant as an advocate in any manner and the 6 judgment of this Court in Sushma Suri is squarely applicable. Learned counsel would submit that ‘advocate’ means any person who pleads for his client. The word, ‘advocate’ is genus whereas expressions, Law Officer/Assistant District Attorney/Public Prosecutor are species. They are covered within the meaning of term ‘advocate’. Suspension of the licence or deleting the name from the roll of advocates cannot exclude a Public Prosecutor or Assistant District Attorney from the definition of word ‘advocate’. He further argued that if Public Prosecutor and Assistant JUDGMENT 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 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. 32. Mr. Raju Ramchandran, learned senior counsel appeared for the High Court of Punjab and Haryana on administrative side. He submitted that District Attorney, Public Prosecutor and Assistant Advocate 21 Page 21 General are in essence lawyers. Even though Rule 49 was amended by the Bar Council of India, yet under the amended rule District Attorneys,

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 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 test enunciated in 6 Sushma Suri , namely, whether he is engaged to act or plead on behalf of the employer in a court of law as an advocate should be applied to find JUDGMENT out whether the private appellants whose appointments have been cancelled met the prescribed eligibility or not. 33. Learned senior counsel sought to distinguish the decision of this Court in Mallaraddi H. Itagi & Ors. v. High 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 22 Page 22 that they were government servants; and the candidates therein had surrendered their licence.

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. 35. On the other hand, Mr. Prashant Bhushan, learned counsel for the respondent – Keshav Kaushik (writ petitioner before the High Court) in the appeal preferred by Deepak Aggarwal, referred to Article 233(2) of the Constitution and submitted that in order to be eligible, the candidate must not be in the service of Union or the State and must have been an advocate for at least seven years. It was submitted that the expression, “if JUDGMENT he has been for not less than seven years an advocate” must be read to mean seven years immediately preceding his appointment/ application. It cannot mean any seven years any time in the past. If that interpretation were to be accepted, it would mean that a person who is enrolled as an advocate for seven years and thereafter took up a job for the last twenty years would also become eligible for being appointed as District Judge. This would defeat the object of the qualification prescribed in Article 233(2). 23 Page 23 36. Mr. Prashant Bhushan contended that a Public Prosecutor being a full time employee of the Government, ceases to be an advocate

liable to be transferred and posted with the Government Companies as law 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 justified the view of the High Court. 37. 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 JUDGMENT employment. Rule 43 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. 24 Page 24 38. Chapter IV of the 1961, Act which deals with right to practice, was referred to by the learned senior counsel, particularly, Sections 29 to

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 District Attorney is a whole time employee drawing regular salary, he will not be entitled to be enrolled as an advocate. 39. In support of the above submissions, Mr. P.S. Patwalia relied 7 upon decision of this Court in Satish Kumar Sharma and a decision of this Court in Mallaraddi H. Itagi. Reference was also made to the decision JUDGMENT of the Karnataka High Court in Mallaraddi H. Itagi 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, namely, Kerala 10 High Court in K.R. Biju Babu v. High Court of Kerala & Another , 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 10 (2008) Labour & Industrial Cases 1784 25 Page 25 11 Sudhakar Govindrao Deshpande v. State of Maharashtra and Others , Allahabad High Court in Akhilesh Kumar Misra and Others v. The High

Jodhpur and Another decided on 21.02.2012. 40. Mr. P.S. Patwalia referred to Article 233(2) of the Constitution 4 and the decision of this Court in Chandra Mohan and submitted that a person already employed in the executive service of a State is ineligible to be appointed. He heavily relied upon paragraphs 49 and 50 of the impugned judgment and submitted that the findings returned by the High Court were in accord with law. 41. On behalf of the respondents in the appeal by Dinesh Kumar Mittal, it was submitted that Article 233(2) of the Constitution lays down JUDGMENT 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 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 read with Rule 49 of the BCI Rules. It was suggested that 11 (1986) Labour & Industrial Cases 710 12 AIR (1995) Allahabad 148 26 Page 26 the words “has been” in Article 233(2) must be read to mean the advocate or pleader who continues to be so at the time of his appointment.

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 JUDGMENT 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) 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 4 Mohan . 4 43. In the case of Chandra Mohan the facts were these: during 1961 and 1962, the Registrar of the Allahabad High Court called for 27 Page 27 applications for recruitment with regard to ten vacancies in the Uttar Pradesh Higher Judicial Service from Barristers, Advocates, Vakils and

for appointment to the said service. The three of the selected candidates were advocates and three were judicial 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, 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 JUDGMENT the Division Bench. The members of the Bench agreed that selection from the Bar was good but as regards selection from the cadre of judicial officers, there was difference of opinion on the aspect of non-issuance of notification under Article 237 of the Constitution. The matter was referred to a third Judge who agreed with one of the Judges who held that selection from the judicial officers was also good. Thus, the writ petitions were dismissed. The High Court on the application for certificate to appeal to this Court certified the case a fit one for appeal, consequently, the appeal 28 Page 28 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

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: “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, 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 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.” JUDGMENT This Court then in paragraphs 16 and 17 (pg. 1994) of the Report observed as follows: 29 Page 29

JUDGMENT 30 Page 30

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) 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 : “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 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.” JUDGMENT 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.” 31 Page 31 Explaining the meaning of the expression, ‘the service’, this is what this 4 Court said in paragraph 20 of the Report (Pg. 1995) in Chandra Mohan .

JUDGMENT 4 44. The Constitution Bench in Chandra Mohan has thus clearly held that the expression ‘the service’ in Article 233(2) means the judicial service. 5 45. In Satya Narain Singh , this Court again had an occasion to consider Article 233 of the Constitution. This Court referred to an earlier 32 Page 32 9 decision of this Court in Rameshwar Dayal and construed Article 233 as follows:

JUDGMENT 4 After referring to Chandra Mohan , this Court in paragraph 5 (pg. 230) stated as under : “5. Posing the question whether the expression “the service of the Union or of the State” meant any service of the Union or of the State or whether it meant the Judicial Service of the Union or of the State, the learned Chief Justice emphatically held that the expression “the service” in Article 233(2) could only mean the Judicial Service. But he did not mean by the above statement that persons who are already in the service, on the recommendation by the High Court can be 33 Page 33 appointed as District Judges, overlooking the claims of all other seniors in the Subordinate Judiciary contrary to Article 14 and Article 16 of the Constitution.”

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. JUDGMENT 47. The question that has been raised before us is whether 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. 3 48. In Kumari Shrilekha Vidyarthi , 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 34 Page 34 office. In paragraph 14 of the Report (Pgs. 232-233) this Court stated as under :

49. In State of U.P. and Others v. U.P. State Law Officers 13 Association and Others , this Court, while distinguishing the judgment of 3 this Court in Kumari Shrilekha Vidyarthi , observed that appointment of lawyers by the Government and the public bodies to conduct work on their behalf and their subsequent removal from such appointment have to be JUDGMENT 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: “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 13 (1994) 2 SCC 204 35 Page 35

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.” JUDGMENT 36 Page 36 50. In S.B. Shahane and Others v. State of Maharashtra and 14 another , this Court held in para 12 (Pg. 43) as under :

JUDGMENT 14 1995 Supp (3) SCC 37 37 Page 37 6 51. In Sushma Suri , a three-Judge Bench of this Court considered the meaning of the expression “advocate” occurring in Article

“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 JUDGMENT 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 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 necessary qualification, experience and knowledge of life. A Government Counsel may be a Public Prosecutor or Government Advocate or a Government Pleader. He too 38 Page 38

With regard to unamended Rule 49 of the BCI Rules, this Court held as under : “10. Under Rule 49 of the Bar Council of India Rules, an advocate shall not be a full-time employee of any person, Government, firm, corporation or concern and on taking up such employment, shall intimate such fact to the Bar Council concerned and shall cease to practise as long as he is in such employment. However, an exception is made in such cases of law officers of the Government and corporate bodies despite his being a full-time salaried employee if such law officer is required to act or plead in court on behalf of others. It is only to those who fall into other categories of employment that the bar under Rule 49 would apply. An advocate employed by the Government or a body corporate as its law officer even on terms of payment of salary would not cease to be an advocate in terms of Rule 49 if the condition is that such advocate is required to act or 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 JUDGMENT 39 Page 39

52. The authority most strongly relied on for the appellants is the 6 decision of this Court in Sushma Suri . Their contention is that the 6 decision in Sushma Suri 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 6 Sushma Suri has no application. We shall deal with this aspect a little later. 7 53. In Satish Kumar Sharma , the facts were these : the appellant was initially appointed as Assistant (Legal) by the Himachal Pradesh State JUDGMENT 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 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 40 Page 40 received from the Bar Council of Himachal Pradesh, the Board designated the appellant as Law Officer. The Bar Council of Himachal Pradesh issued

(Legal)-cum-Law Officer and then promoted as Under Secretary, (Legal)- cum-Law Officer on officiating basis. Bar Council of Himachal Pradesh issued a notice to the appellant to show cause why his enrolment be not withdrawn. The appellant responded to the said notice. In the meanwhile, appellant was also promoted as Deputy Secretary (Legal)-cum-Law Officer on ad hoc basis. On 12.5.1996, the Bar Council of Himachal Pradesh passed an order withdrawing the enrolment of the appellant with immediate effect and directed him to surrender the enrolment certificate within 15 days therefrom. It was this resolution which was challenged by JUDGMENT the appellant before the Himachal Pradesh High Court. However, he was unsuccessful before the High Court and he approached this Court. This Court referred to Sections 24, 28 and 49 of the 1961 Act and Rule 49 of the BCI Rules. This Court also considered the terms of appointment, nature of duties and service conditions relating to the appellant and in paragraph 17 (Pg. 377) of the Report noted as follows : “17. Looking to the various appointment/promotion orders issued by the Board to the appellant and regulation of business relating to Legal Cell of the Board aforementioned, we can gather that: 41 Page 41

53.1. Then with regard to Rule 49 of the BCI Rules, this Court in paragraph 18 (pgs. 377-378) observed as under : “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: ( i ) 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 he continues in such employment; ( ii ) 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; JUDGMENT 42 Page 42

53.2. In paragraph 19, this Court noted that no rules have been framed by the Bar Council of Himachal Pradesh in respect of Law Officer appointed as a full time salaried employee and if there are no rules in this regard then there is no entitlement for enrolment and the appellant’s case could not fit in the exception of Rule 49 and the bar contained in the first paragraph of Rule 49 was attracted. It also noted that the appellant was/is a full time salaried employee and his work was not mainly or exclusively to 6 act or plead in the Court. The decision in Sushma Suri was held to be of no help to the case of the appellant. In paragraph 23 (Pgs. 380-381), the Court observed that the work being done by the appellant was different JUDGMENT from Prosecutors and Government Pleaders in relation to acting and pleading in court. This is what the Court said : “23. We find no merit in the ground urged that the appellant was discriminated against the prosecutors and the government pleaders. The duties, nature of work and service conditions 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 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.” 43 Page 43 15 54. In State of U.P. & Another v. Johri Mal , a three-Judge Bench of this Court while dealing with the nature of the office of the District

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 having regard to various provisions contained in the Code 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 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 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. JUDGMENT 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 15 (2004) 4 SCC 714 44 Page 44

16 55. In Mahesh Chandra Gupta v. Union of India and Others , with reference to the provisions contained in the Legal Practitioners Act, 1879, the 1926 Act and the 1961 Act, this Court observed as follows: “66. Thus, it becomes clear from the legal history of the 1879 Act, the 1926 Act and the 1961 Act that they all deal with a person's right to practise or entitlement to practise. The 1961 Act only seeks to create a common Bar consisting of one class of members, namely, advocates. Therefore, in our view, the said expression “an advocate of a High Court” as understood, both, pre and post 1961, referred to person(s) right to practise. Therefore, actual practise 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.” JUDGMENT 56. The Karnataka High Court in Mallaraddi H. Itagi and Others v. 17 The High Court of Karnataka, Bangalore and Another was, inter alia, concerned with the question whether the petitioners, who were working as either Assistant Public Prosecutors or Senior Assistant Public Prosecutors 16 (2009) 8 SCC 273 17 2002 (4) Karnataka Law Journal 76 45 Page 45 or Public Prosecutors, were eligible to be considered for appointment as District Judges under Article 233(2) of the Constitution and Rule 2 of

considered the relevant provisions and the decisions of this Court in 6 5 Sushma Suri and Satya Narain Singh . The High Court held that having regard to the provisions in the Karnataka Recruitment Rules, the petitioners were civil 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): “The petitioners 1 to 9 came to be appointed as Assistant Public Prosecutors/Senior Assistant Public Prosecutors/Public 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 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 JUDGMENT 46 Page 46

JUDGMENT 47 Page 47

5 With reference to the decision of this Court in Satya Narain Singh , the Karnataka High Court held as under (Pg. 88-89) : “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 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 Constitution of India. Therefore, the Judicial Officers who are in the State services are ineligible for appointment in respect of direct recruitment vacancies. However, if the argument of the learned Counsel for petitioners is accepted as correct, the Assistant Public Prosecutor and Senior Assistant Public Prosecutor who are only made eligible under the Recruitment Rules to the post of Munsiffs which is the lowest cadre in the District Judiciary would be eligible for appointment to the post of District Judges in respect of the posts reserved for direct recruitment vacancies. In our view, the acceptance of such a position would lead to discrimination between the officers of the State who are in judicial services on the one hand and Assistant Public Prosecutors, Senior Assistant Public Prosecutors and Public Prosecutors on the other. While considering the contention of the learned Counsel for the petitioners that the 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 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, there is no merit in this submission. No doubt, JUDGMENT 48 Page 48

JUDGMENT 57. The judgment of the Karnataka High Court in Mallaraddi H. 17 Itagi was challenged before this Court. This Court dismissed the appeals 49 Page 49 18 on 18.05.2009 and, upholding the judgment of the High Court, observed as follows:

“These orders clearly show that the appellant was required to work in the Legal Cell of the Secretariat of the Board; was given different pay scales; rules of seniority were applicable; promotions were given to him on the basis of the recommendations of the Departmental Promotion Committee; was amenable to disciplinary proceedings, etc. Further looking to the nature of duties of Legal Cell as stated in the regulation of business of the Board extracted above, the appellant being a full-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 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. JUDGMENT 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.” 18 Civil Appeal Nos. 947-956 of 2003, Mallaraddi H. Itagi and Ors. v. High Court of Karnataka and Ors. 50 Page 50

58. The decision of the Karnataka High Court in Mallaraddi H. 17 18 Itagi and the judgment of this Court in the appeals from that decision have been heavily relied on by the respondent – successful writ petitioner. 59. Few decisions rendered by some of the High Courts on the 11 point may also be noticed here. In Sudhakar Govindrao Deshpande , 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 JUDGMENT Bench of the Bombay High Court, was eligible for appointment to the post 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 st seven years on the 1 October, 1980’. The Single Judge of the Bombay High Court considered Articles 233, 234 and 309 of the Constitution, relevant Recruitment Rules and noted the judgments of this Court in 51 Page 51 4 5 9 Chandra Mohan , Satya Narain Singh and Rameshwar Dayal . It was observed as follows:

60. In Smt. Jyoti Gupta v. Registrar General, High Court of M.P., 19 Jabalpur and Another , 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 : JUDGMENT “. . . . . . 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 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 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 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 19 2008 (2) MPLJ 486 52 Page 52

JUDGMENT 53 Page 53 61. In K. Appadurai v. The Secretary to Government of Tamil 20 Nadu and Another , one of the questions under consideration before the

Assistant Public Prosecutor (Grade I & II). The Division Bench of that Court referred to Article 233 of the Constitution, Rule 49 of the BCI Rules and the 5 4 decisions of this Court in Satya Narain Singh , Chandra Mohan , Sushma 6 15 7 Johri Mal Suri , and Satish Kumar Sharma . The Division Bench held as under: “22. In the light of the ratio laid down by the Supreme Court 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. JUDGMENT 23. It was argued on behalf of the petitioners that the note appended to Rule 49 of the Bar Council of India Rules having been deleted by a resolution dated 22nd June, 2001 of the Bar Council of India, the ratio decided by the 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 substance. 20 2010-4-L.W.454 54 Page 54

10 62. In Biju Babu , the question before the Kerala High Court JUDGMENT was whether the appellant, who was a Public Prosecutor appointed by the Central Government to conduct cases for the C.B.I., was eligible for appointment to the post of District Judge in the Kerala State Higher Judicial Service by direct recruitment. The High Court answered the question in the negative mainly relying on amended Rule 49 of the BCI 7 Rules and the legal position stated by this Court in Satish Kumar Sharma . 55 Page 55 63. Two more judgments of this Court may be quickly noticed 21 here. In State of U.P. v. Ramesh Chandra Sharma and others , this

Bench of this Court in Samarendra Das, Advocate v. State of West Bengal 22 and others was concerned with the question whether the post of Assistant Public Prosecutor was a civil post under the State of 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 of Judicial Magistrate. 64. After the arguments were concluded in these matters and the JUDGMENT 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 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 before us, 21 (1995) 6 SCC 527 22 (2004) 2 SCC 274 56 Page 56 may be advised to challenge the judgment. We do not intend to foreclose the rights of the parties one way or the other.

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 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 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 JUDGMENT names of persons, who in the opinion of the District Magistrate after consultation with the Sessions Judge, are fit to be appointed as Public 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 Public Prosecutor may also be appointed by the Central or the 57 Page 57 State Government for the purpose of any case or class of cases but he has to be a person who has been in practise as an advocate for not less than 10 years. 66. Public Prosecutor has a very important role to play in the administration of justice and, particularly, in criminal justice system. Way 23 back on April 15, 1935 in Harry Berger v. United States of America , Mr. Justice Sutherland, who delivered the opinion of the Supreme Court of United States, said about the United States Attorney that he is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. The twofold aim of United States Attorney is that guilt shall not escape or JUDGMENT 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. 67. The Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, adopted guidelines on the role of Prosecutors in 1990. Inter-alia, it states that Prosecutors shall perform their duties fairly, consistently and expeditiously and respect and protect human 23 295 U.S. 78 58 Page 58 dignity and uphold human rights. He shall take proper account of the position of the suspect and the victim and pay attention to all relevant

68. As a follow up action to the above guidelines on the role of Prosecutors, the International Association of Prosecutors 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 safeguard the rights of the accused in co-operation with the Court. 69. European Guidelines on Ethics and Conduct for Public JUDGMENT Prosecutors [The Budapest Guidelines] adopted in the Conference of st Prosecutors General of Europe on 31 May, 2005 are on the same lines 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, independently; seek to ensure that the criminal justice system operates as expeditiously as 59 Page 59 possible, being consistent with the interests of justice; respect the principle of the presumption of innocence and have regard to all relevant

70. In India, role of Public Prosecutor is no different. He has at all times to ensure that an accused is tried fairly. He 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 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 JUDGMENT shall so conduct the prosecution that it does not lead to conviction of the innocent; he should scrupulously avoid suppression of material capable of establishing the innocence of the accused. 2 71. A two Judge Bench of this Court in Mukul Dalal , while dealing with a question about the justifiability of the appointment by the State of Special Public Prosecutors and Assistant Public Prosecutors under Sections 24 and 25 Cr.P.C. respectively, observed that in criminal 60 Page 60 jurisprudence the State was a prosecutor and that is why primary position is assigned to the Public Prosecutor.

disclosure. The Court noted earlier decisions of this Court in Shiv Kumar 25 v. Hukam Chand and Another and Hitendra Vishnu Thakur and Other s v. 26 State of Maharashtra and others and in paragraphs 185 and 186 (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. Hukam Chand [(1999) 7 SCC 467] as follows: (SCC p. 472, para 13) “ 13 . From the scheme of the Code the legislative intention is manifestly clear that prosecution in a Sessions Court cannot 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 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 the defence counsel overlooked it, the Public Prosecutor has JUDGMENT 24 (2010) 6 SCC 1 25 (1999) 7 SCC 467 26 (1994) 4 SCC 602 61 Page 61

186. This Court has also held that the Prosecutor does not represent the investigating agencies, but the State. This 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 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 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 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.” JUDGMENT Then in paragraph 187 (Pg. 74) the Court stated as follows : “187. Therefore, a Public Prosecutor has wider set of duties than to merely ensure that the accused is punished, the duties of ensuring fair play in the proceedings, all relevant facts are brought before the court in order for the determination of truth and justice for all the parties including the victims. It must be noted that these duties do not allow the Prosecutor to be lax in any of his duties as against the accused.” 73. In a recent decision in Centre for Public Interest Litigation and 27 others v. Union of India and others , the question before this Court was in 27 (2012) 3 SCC 117 62 Page 62 respect of the appointment of a Special Public Prosecutor to conduct the prosecution on behalf of CBI and ED in 2G Spectrum case. While dealing

24 and few earlier decisions of this Court in Manu Sharma , Sheonandan 28 15 Paswan v. State of Bihar and Others and Johri Mal and it was observed that in an appointment of Public Prosecutor, the principle of master-servant does not apply; such an appointment is not an appointment to a civil post. 74. The mode of appointment of Public Prosecutor (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 JUDGMENT in the role and position of Public Prosecutor and Assistant Public 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 22 Samarendra Das , this Court held that the post of Assistant Public Prosecutor was a civil post. This position was accepted by a three-Judge 15 15 Bench of this Court in Johri Mal . It was stated in Johri Mal , “….a distinction is to be borne in mind between appointment of a Public 28 (1987) 1 SCC 288 63 Page 63 Prosecutor or Additional Public Prosecutor on the one hand and Assistant Public Prosecutor on the other. So far as Assistant Public Prosecutors are

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 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 reason. 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 High Court or for a district and Assistant Public Prosecutor is appointed under Section JUDGMENT 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/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 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 64 Page 64 as being in practice as an advocate under Section 24(9) Cr.P.C. In other words, the rendering of service as a Public Prosecutor or as Assistant

75. The three appellants namely, Deepak Aggarwal, Chandra Shekhar and Desh Raj Chalia, at the time of their application, were admittedly working as Assistant District Attorney. They were appointed under the Haryana State Prosecution Legal Service (Group C) Rules, 1979 (for short, ‘1979 Rules’). The relevant Rules read as under : “2. Definitions.—In these rules, unless the context otherwise requires:- 2(a) xxx xxx xxx 2(b) “direct recruitment” means an appointment made otherwise than by promotion or by transfer of an official already in the service of the Government of India or any State Government; xxx xxx xxx 6. Appointing Authority.—Appointment to the posts in the service shall be made by the Director. xxx xxx xxx 9. Method of Recruitment.-(1) Recruitment to the Service shall be made:- JUDGMENT (i) by direct recruitment; or (ii) by promotion; or xxx xxx xxx 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. 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: 65 Page 65 Provided further that in the case of two or more members appointed on the same date, their seniority shall be determined as follows:

(2) A member of the Service may also be deputed to serve under,- (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 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 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; 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. 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 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: JUDGMENT 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. 66 Page 66

75.1. Appendix ‘B’ appended to the 1979 Rules provided for qualification and experience for Assistant District Attorney. It reads as

follows : and (ii)who has practiced at the bar (ii) who has worked - for a period of not less than (a) for a period of not less than two years five years, as Assistant in any post in the equivalent or higher scale in any Government office; or JUDGMENT (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 Government office.” ----------------------------------------------------------------------------------------------------------------------------------- 76. Of the other appellants , Rajesh Malhotra at the time of making application was Public Prosecutor in the office of CBI. His services were 67 Page 67 governed by the General Rules and CBI (Legal Advisers and Prosecutors) Recruitment Rules, 2002. It is not necessary to refer to these Rules in

from in-service Assistant Public Prosecutors or by deputation from 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 of his application. In the impugned judgment, he has been held to be full-time employee of the Punjab Government. 77. We do not think there is any doubt about the meaning of the expression “advocate or pleader” in Article 233(2) of the Constitution. This JUDGMENT 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 68 Page 68 6 on behalf of his client. In Sushma Suri , a three-Judge Bench of this Court construed the expression “members of the Bar” to mean class of

the State Bar Council and entitled to practice under the 1961 Act was held to be covered by the expression ‘advocate’ under Article 233(2). We respectfully agree. 13 78. In U.P. State Law Officers Association , 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 JUDGMENT imposed by the said rule against the acceptance by a lawyer of a full-time 6 employment. In Sushma Suri , a three-Judge Bench of this Court while considering the meaning of the expression “advocate” in Article 233(2) of the Constitution and unamended Rule 49 of the BCI Rules held that if a person was on the rolls of any Bar Council and is engaged either by employment or otherwise by the Union or State and practises before a court as an advocate for and on behalf of such Government, such person does not cease to be an advocate. This Court went on to say that a Public 69 Page 69 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

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 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 the law officer discharges on his engagement by the Government were held decisive. We are in full agreement with the above view in Sushma JUDGMENT 6 Suri . 79. While referring to unamended Rule 49, this Court in Sushma 6 Suri said that Bar Council of India had understood 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. 7 80. Have the two subsequent decisions in Satish Kumar Sharma 18 6 and Mallaraddi H. Itagi differed from Sushma Suri ? Is there any conflict 70 Page 70 7 or inconsistency in the three decisions? Satish Kumar Sharma and 18 Mallaraddi H. Itagi are the two decisions on which very heavy reliance

part of the judgment, this Court found from the appointment/promotion orders in respect of the appellant therein that he was required to work in the legal cell of the Secretariat of the Board. Central to the entire 7 reasoning in Satish Kumar Sharma 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 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 JUDGMENT required to perform and in the absence of any rules framed by 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 7 to be attracted. In Satish Kumar Sharma , this Court did apply the test 6 that was enunciated in Sushma Suri viz., whether a person is engaged to act and/or plead in a court of law to find out whether he is an advocate. In 7 Satish Kumar Sharma when this Court observed with reference to Chapter 71 Page 71 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

inconsistent with practice in law. In para 23 of the judgment in Satish 7 Kumar Sharma , 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 7 be said that there is any departure in Satish Kumar Sharma from Sushma 6 Suri . 18 81. In Mallaraddi H. Itagi , the appellants were actually found to be government servants when they made applications for the post of JUDGMENT 17 District Judges. The High Court in its judgment in Mallaraddi H. Itagi had noticed that the appellants had surrendered their certificate of practice and suspended their practice on their appointment as Assistant Public Prosecutors/Senior Assistant Public Prosecutors/Public Prosecutors in terms of Karnakata Recruitment Rules. It was on this basis that Karnataka 6 High Court held that Sushma Suri was not applicable to the case of the appellants. There is consonancy and congruity with the decisions of this 72 Page 72 6 7 18 Court in Sushma Suri , Satish Kumar Sharma and Mallaraddi H. Itagi and, in our opinion, there is no conflict or inconsistency on the principle of law. 1 82. In none of the other decisions viz., Mundrika Prasad Sinha , 2 3 Mukul Dalal and Kumari Shrilekha Vidyarthi , 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 3 practitioner. In Kumari Shrilekha Vidyarthi 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 to be equated with post under the JUDGMENT 21 government in strict sense. In Ramesh Chandra Sharma , this Court reiterated that the appointment of any legal practitioner as a District Government Counsel is only a professional engagement. 83. 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 73 Page 73 practice, and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears, and shall thereupon

carved out that a ‘Law Officer’ of the Central 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 Council of India has deleted the said provision and hence on and from that date a full time salaried employee, be he Public Prosecutor or Government Pleader, cannot be an advocate under the 1961 Act. 84. Admittedly, by the above resolution of the Bar Council of India, JUDGMENT the second and third para of Rule 49 have been deleted but we have to see the effect of such deletion. What Rule 49 of the BCI Rules provides is that an advocate shall not be a full time salaried employee of any person, government, firm, corporation or concern so long as he continues to practice. The ‘employment’ spoken of in Rule 49 does not cover the employment of an advocate who has been solely or, in any case, predominantly employed to act and/or plead on behalf of his client in courts of law. If a person has been engaged to act and/or plead in court of law as 74 Page 74 an advocate although by way of employment on terms of salary and other service conditions, such employment is not what is covered by Rule 49 as

work, the prohibition in Rule 49 immediately comes into play and then he becomes a mere employee and ceases to be an advocate. The bar contained in 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 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. 85. What we have said above gets fortified by Rule 43 of the BCI JUDGMENT Rules. Rule 43 provides that an advocate, who has 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-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 75 Page 75 consistent with his practising as an advocate or, in other words, whether pursuant to such employment, he continues to act and/or plead in the

be an advocate. 86. 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 JUDGMENT government and is subject to disciplinary control of the employer, but once he appears in the court for conduct of a 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 Assistant Public Prosecutor is not 22 an officer of the court. The view in Samarendra Das to the extent it holds 76 Page 76 that an Assistant Public Prosecutor is not an officer of the Court is not a correct view.

appellants – Assistant District Attorney, Public Prosecutor and Deputy Advocate General – recorded undisputed factual position that they were appearing on behalf of their respective States primarily in criminal/civil cases and their appointments were basically under the C.P.C. or Cr.P.C. That means their job has been to conduct cases on behalf of the State Government/C.B.I. in courts. Each one of them continued to be enrolled with the respective State Bar Council. In view of this factual position and the legal position that we have discussed above, can it be said that these appellants were ineligible for appointment to the office of Additional District and Sessions Judge? Our answer is in the negative. The Division Bench JUDGMENT committed two fundamental errors, first, the Division Bench erred in holding that since these appellants were in full-time employment of the State Government/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 77 Page 77 Prosecutor/Deputy Advocate General, ceased to be ‘advocate’ and since each one of them continued to be ‘advocate’, they cannot be considered

sustained. 88. 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 right in his submission that this expression means seven years as an advocate immediately preceding the application 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 continuing. Therefore, one of the essential requirements articulated by the above JUDGMENT expression in Article 233(2) is that such person must with requisite period be continuing as an advocate on the date of application. 89. Rule 11 of the HSJS Rules provides for qualifications 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 78 Page 78 while working as Assistant District Attorney/Public Prosecutor/Deputy Advocate General, the period during which they have been working as

enrolled as advocates and were continuing as advocates on the date of the application. 90. 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 date of application. The impugned judgment as regards them is liable to be set aside and is set aside. JUDGMENT 91. Appeals are allowed as above with no order as to costs. …………………….J. (R.M. Lodha) ..…………………….J. (Anil R. Dave) ..…………………….J. (Ranjan Gogoi) 79 Page 79 NEW DELHI JANUARY 21, 2013. JUDGMENT 80 Page 80