PETITIONER: SUSHMA SURI ETC. Vs. RESPONDENT: GOVT. OF NATIONAL CAPTIAL TERRITORY OF DELHI & ANR. DATE OF JUDGMENT: 08/10/1998 BENCH: K.T.THOMAS, S.RAJENDRA BABU ACT: HEADNOTE: JUDGMENT:
JUDGMENT
CIVIL APPEAL NO. 3021 OF 1997
Appellant responded to an advertisement issued by
the High Court of Delhi inviting applications from
candidates who have practiced as advocate for recruitment to
the Delhi High Judicial Service Claiming that she had put in
experience for not less than seven years as an advocates at
the time of filing the application. In 1982 Mrs. Sushma
Suri passed the examination of Advocate on Record conducted
by Supreme Court of India and in 1986 she was appointed as
Assistant Government Advocate. Thereafter she was promoted
to the post of India. When she was not called for
interview, she filed a petition in the High Court under
Article 226 of the Constitution. The High Court relying on
a Division bench decision of the same court in Civil Writ
Petition No. 1961 of 1987 in Oma Shanker Sharma vs. Delhi
Administration and Another decided on 13.1.1988 as affirmed
by this Court in S.L.P. (C) No. 3088/88 held that the
petitioner is not entitled to be considered for appointment.
Hence this appeal.
The High Court in Oma Shanker Sharma’s case held
that there are two sources of recruitment to Delhi Higher
Judicial Service namely, (i) officers in Delhi Judicial
Service and (ii) Advocate or pleader of not less than seven
years’ standing. The petitioner therein being in the
service of the Union Administration could not fall under
first category nor could he be treated as an advocate since
the Law officers of the Government such as public
Prosecutors/Government counsel may not cease to be advocates
for purposes of Advocates Act but yet they are not members
of the Bar. On that basis the Claim of the petitioner
therein was denied. In the special leave petition against
that order, this Court held that the appellant being a
Public Prosecutor was in the service of Union Territory and
as such was not eligible to be considered for appointment in
the Delhi Higher Judicial Service. However whether such
Public Prosecutor would be an advocate was not considered by
this Court in that decision. The stand of the parties in
these cases is identical as in Oma Shanker Sharma’s case
(supra). Hence we wish to examine the correctness of the
view expressed by the High Court as to whether a Public
Prosecutor/Government counsel/Standing counsel of any
corporation or authority would cease to be an advocate for
the purpose of Article 233(2) of the Constitution so as not
to belong to the Bar.
The Rules of recruitment have been framed under
Proviso to Article 309 of the Constitution known as Delhi
Higher Judicial Service Rules. 1970 (hereinafter referred
to as ‘the Rules”). Rule 5 thereof provides for the mode of
recruitment. The recruitment of persons to the service
shall be made by the Administrator in consultation with the
High Court. In regard to the persons not already in Delhi
Judicial Service, appointment to service shall be made by
the Administrator on the recommendations to be made by the
High Court. Rule 7 pertains to regular recruitment and
provides that persons who had been recruited and promoted on
the basis of selection from members of the Delhi Judicial
Service, who have completed not less than then years of
service in Delhi Judicial Service and by direct recruitment
from the bar provided that not more than one third of the
posts in the service shall be held by direct recruits.
Obviously this rule has been framed to be in conformity with
Article 233 of the Constitution. Article 233(1) thereof
provides for appointments of persons who are already service
while Article 233(2) provides that a person not already in
service is eligible for appointment if he has been for not
less than seven years an advocate or a Pleader and is
recommended for the purpose by the High Court. Referring to
the expression ‘service’ in Article 233(2) it has been held
by this Court in Chander Mohan Vs Union of India AIR 1966 SC
308, that it means “judicial service”. However, it is not
the contention either before the High Court or before us
that the appellant is in judicial service. On the other
hand the contention is that she has more than seven years
experience as advocate and, therefore, is fully eligible to
be appointed to the Higher Judicial Service and the High
Court was not justified in not considering her case for
appointment. Hence we have to examine the only question
whether the appellant is an “advocate” for the purpose of
Article 233(2) of the Constitution and “from the Bar” as
envisaged in Rule 7 of the Rules.
We have to ascertain the meaning of the expression
‘advocate or a pleader’ used in Article 233(2) of the
Constitution and to do so we may use the Advocates Act and
the rules framed by the Bar Council. Under Section 2(a) of
the Advocates Act. ‘Advocate’ means advocate entered in any
roll under the provisions of the Act.
Rule 49 framed by the Bar Council reads as follows:-
“An Advocate shall not be a full-time salaried
employee of any person, Government, firm,
corporation or concern, so long as he continues to
practice and shall, on taking up any such
employment, intimate the fact to the Bar Council on
whose roll his name appears, and shall thereupon
cease to practise as an Advocate so long as he
continues in such employment.
Nothing in this rule shall apply to a Law Officer of
the Central Government or of a State or of any
Public Corporation or body constituted 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 desoite his being a full-time
salaried employee.
Law Officer for the purpose of this Rule means a
person who is so designated by the term of his
appointment and who, by the said term, is required
to act and/or plead in Courts on behalf of his
employer.”
If a person on being enrolled as an advocate ceases
to practice 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 practices before
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.
This Court in I.A. No.32 of 1995 in Review Petition
No. 248 of 1994 in Writ Petition (Civil) No. 1022 of 1989
All India Judges Association Vs. Union of India decided on
10.5.1985 held that :-
“There is no doubt in our minds that what was
intended by the provision was that a candidate for
appointment to judicial office should be a person
who had three years experience of practice as an
advocate. He must be a lawyer in the sense that
he regularly practices before a Court or tribunal,
who appears for his clients before the Court or
Tribunal. it may be that in a given case he may
do so only for a client who is his employer.”
For purposes of Advocates Act and the Rules framed
thereunder the Law Officer (Public Prosecutor or Government
Counsel) will continue to be an advocate. The intention of
the relevant Rules is that a candidate eligible for
appointment to Higher Judicial Service should be a person
who regularly practices before the Court or Tribunal
appearing for a client.
In Oma Shanker Sharma’s case, the Delhi High Court
approached the matter in too pedantic a manner losing sight
of the object of recruitment under Article 233(2) of the
Constitution. Whenever any recruitment is conducted to fill
up any post, the area of recruitment must be as broad based
as Rules permit. 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 Advocate or a Government Pleader. He
too gets experience in handling various types of cases apart
from dealing with the officers of the Government.
Experience gained by such persons who fall in this
description, cannot be stated to be irrelevant nor
detrimental to selection to the posts of Higher Judicial
Service. The expression ‘members of the Bar’ in the
relevant rule would only mean that a particular class of
persons who are actually practising in courts of law as
pleaders or advocates. In a very general sense an advocate
is a person who acts or pleads for another in a court and if
a public prosecutor or a Government counsel is on the rolls
of the Bar Council and is entitled to practice under the
Act, he answers the description of an advocate.
any post, the area
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 concerned
Bar Council and shall cease to practise as long as he is in
such employment. However, an exception is made in such cases
to Law Officer is required to act or plead in Court on
behalf of others. It is only to those who fall into other
categories of employment that the bar under rule 49 would
apply. An advocate employed by the Government or a Body
Corporate as its Law Officer even on terms of payment of
salary would not cease to be an advocate in terms of Rule 49
if the condition is that such advocate is required to act or
plead in Courts on behalf of the employer. The test,
therefore, is not whether such person is engaged on terms of
salary or by payment of remuneration, but whether he is
engaged to act or plead on its behalf in a Court of law as
an advocate. In that event the terms of engagement will not
matter at all. What is of essence is as to what such Law
Officer engaged by the Government does – whether he acts or
pleads in Court on behalf of his employer or otherwise. If
he is not acting or pleading on behalf of his employer, then
he ceases to be an advocate. If the terms of engagement are
such that he does not have to act or plead, but does other
kinds of work, then he becomes a mere employee of the
Government or the Body Corporate. Therefore, Bar Council of
India has understood the expression ‘advocate’ as one who
is actually practising before courts which expression would
include even those who are law officers appointed as such by
the Government or body corporate.
If that be the true position, we fail to understand
how the object of recruitment could be defeated if these
persons are also allowed to participate in the recruitment
process. None of the decisions referred to in Oma Shanker
Sharma’s case has examined the matter in this perspective.
Either those decisions were concerned with the distinction
between service and judicial service or meaning of
expression ‘advocates’ in other contexts. We think it is in
this manner that the expression used in Article 233(2) of
the Constitution has to be understood and the rules framed
by the Delhi Administration in this regard have to be read
in the light of the constitutional provisions. The
expression used ‘from the Bar’ would only mean from the
class or group of advocates practising in Courts of law. It
does not have any other attribute.
On the above analvsis made by us, we think that the
view taken by the High Court cannot be upheld.
However, we are not in a position to give any relief
to the appellant before us now because when she Commenced
this litigation, recruitment process was still going on and
it has gone too far ahead. Now that the same is complete and
the selected candidates have already been appointed and they
have reported to duty at different places and they are not
impleaded as parties in these proceedings, it would not be
proper to upset such appointments. All that we can now do is
to direct the authorities concerned including the High Court
and Government to process the applications for recruitment
of candidates in future in the light of the position as
explained above. If there are any pending recruitments, the
view taken by us shall be applied to them also. The appeal,
therefore, stands disposed of in the manner stated above.
CIVIL APPEAL NO> S3022 AND 3022 OF 1997
These two matters arise out of a common order which
was the subject matter of Civil Appeal No. 3021/97 which we
have disposed of just now. Following the decision and for
the reasons stated therein, these appeals also stand
disposed of in the same terms as set forth therein.
CIVIL APPEAL NO.8359 AND 8360 OF 1997
These appeals arise out of a common order made by
the High Court of Judicature at Allahabad on 26.8.1997 in
civil Miscellaneous Writ Petition Nos. 37519 of 1996 and
37059 of 1996 on identical considerations as available in
the order made by the High Court of Delhi in Writ Petition
No. 286 of 1997 which was the subject matter of Civil
Appeal No. 3021 of 1997. Following the said decision and
for the reasons stated therein, these appeals also stand
disposed of in the same terms as set forth in that case.
CIVIL PETTITION (CIVIL) NO> 189 OF 1997
In this Writ Petition under Article 32 of the
Constitution, the petitioner seeks for a direction to
consider his candidature for appointment to the Higher
Judicial Service in the National Capital Territory of Delhi.
We have examined the relevant rules and passed an order in
Civil Appeal No. 3021 of 1997. Following the order made
therein, this Writ Petition stands disposed of in the same
terms as set forth in C.A.No. 3021/97.
WRIT PETITION (CIVIL) NO. 2 OF 1998
In this Writ Petition under Article 32 of the
Constitution, the petitioner is seeking for a direction to
consider his candidature for appointment to Higher Judicial
Service in the State of Rajasthan. We have examined the
position of similar claims and declared the law in the
matter. If the petitioner satisfies the conditions thereto,
he may place necessary material before the concerned
authority. We hope the same would be examined in the light
of the decision rendered by us in Civil Appeal No. 3021/97.
Subject to what is stated above, this Writ petition is
disposed of.
