{"id":584,"date":"1998-10-08T00:00:00","date_gmt":"1998-10-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sushma-suri-etc-vs-govt-of-national-captial-on-8-october-1998"},"modified":"2016-04-11T20:27:36","modified_gmt":"2016-04-11T14:57:36","slug":"sushma-suri-etc-vs-govt-of-national-captial-on-8-october-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sushma-suri-etc-vs-govt-of-national-captial-on-8-october-1998","title":{"rendered":"Sushma Suri Etc vs Govt. Of National Captial … on 8 October, 1998"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sushma Suri Etc vs Govt. Of National Captial … on 8 October, 1998<\/div>\n
Bench: K.T.Thomas, S.Rajendra Babu<\/div>\n
           PETITIONER:\nSUSHMA SURI ETC.\n\n\tVs.\n\nRESPONDENT:\nGOVT. OF NATIONAL CAPTIAL TERRITORY OF DELHI & ANR.\n\nDATE OF JUDGMENT:\t08\/10\/1998\n\nBENCH:\nK.T.THOMAS, S.RAJENDRA BABU\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
 JUDGMENT
\nCIVIL APPEAL NO. 3021 OF 1997
\nAppellant  responded  to  an advertisement issued by
\nthe  High  Court  of  Delhi   inviting\t applications\tfrom
\ncandidates who have practiced as advocate for recruitment to
\nthe Delhi High Judicial Service Claiming that she had put in
\nexperience  for not less than seven years as an advocates at
\nthe time of filing the application.  In 1982  Mrs.    Sushma
\nSuri  passed the examination of Advocate on Record conducted
\nby Supreme Court of India and in 1986 she was  appointed  as
\nAssistant Government  Advocate.\t Thereafter she was promoted
\nto the\tpost  of  India.    When  she  was  not\t called\t for
\ninterview,  she\t filed\ta  petition  in the High Court under
\nArticle 226 of the Constitution.  The High Court relying  on
\na  Division  bench  decision of the same court in Civil Writ
\nPetition No.  1961 of 1987 in Oma Shanker Sharma vs.   Delhi
\nAdministration\tand Another<\/a> decided on 13.1.1988 as affirmed
\nby this Court in S.L.P.\t (C) No.    3088\/88  held  that\t the
\npetitioner is not entitled to be considered for appointment.
\nHence this appeal.\n<\/p>\n
The  High  Court  in  Oma Shanker Sharma’s case held
\nthat there are two sources of recruitment  to  Delhi  Higher
\nJudicial  Service  namely,  (i)\t officers  in Delhi Judicial
\nService and (ii) Advocate or pleader of not less than  seven
\nyears’ standing.    The\t petitioner  therein  being  in\t the
\nservice of the Union Administration  could  not\t fall  under
\nfirst  category nor could he be treated as an advocate since
\nthe  Law  officers  of\tthe  Government\t  such\t as   public
\nProsecutors\/Government counsel may not cease to be advocates
\nfor  purposes  of Advocates Act but yet they are not members
\nof the Bar.  On that  basis  the  Claim\t of  the  petitioner
\ntherein was  denied.   In the special leave petition against
\nthat order, this Court\theld  that  the\t appellant  being  a
\nPublic\tProsecutor was in the service of Union Territory and
\nas such was not eligible to be considered for appointment in
\nthe Delhi Higher Judicial Service.    However  whether\tsuch
\nPublic Prosecutor would be an advocate was not considered by
\nthis Court  in\tthat  decision.\t The stand of the parties in
\nthese cases is identical as in\tOma  Shanker  Sharma’s\tcase
\n(supra).   Hence  we  wish to examine the correctness of the
\nview expressed by the High Court  as  to  whether  a  Public
\nProsecutor\/Government\tcounsel\/Standing   counsel   of\t any
\ncorporation or authority would cease to be an  advocate\t for
\nthe  purpose of Article 233(2) of the Constitution so as not
\nto belong to the Bar.\n<\/p>\n
The  Rules  of\trecruitment  have  been framed under
\nProviso to Article 309 of the Constitution  known  as  Delhi
\nHigher Judicial\t Service  Rules.  1970 (hereinafter referred
\nto as ‘the Rules”).  Rule 5 thereof provides for the mode of
\nrecruitment.  The recruitment  of  persons  to\tthe  service
\nshall  be made by the Administrator in consultation with the
\nHigh Court.  In regard to the persons not already  in  Delhi
\nJudicial  Service,  appointment\t to service shall be made by
\nthe Administrator on the recommendations to be made  by\t the
\nHigh Court.    Rule  7\tpertains  to regular recruitment and
\nprovides that persons who had been recruited and promoted on
\nthe basis of selection from members of\tthe  Delhi  Judicial
\nService,  who  have  completed\tnot  less than then years of
\nservice in Delhi Judicial Service and by direct\t recruitment
\nfrom  the  bar\tprovided that not more than one third of the
\nposts in the service  shall  be\t held  by  direct  recruits.
\nObviously this rule has been framed to be in conformity with
\nArticle 233  of\t the  Constitution.   Article 233(1) thereof
\nprovides for appointments of persons who are already service
\nwhile Article 233(2) provides that a person not\t already  in
\nservice\t is  eligible for appointment if he has been for not
\nless than seven years  an  advocate  or\t a  Pleader  and  is
\nrecommended for the purpose by the High Court.\tReferring to
\nthe  expression ‘service’ in Article 233(2) it has been held
\nby this Court in Chander Mohan Vs Union of India AIR 1966 SC
\n308, that it means “judicial service”.\tHowever, it  is\t not
\nthe  contention\t either\t before\t the High Court or before us
\nthat the appellant is in judicial service.    On  the  other
\nhand  the  contention  is that she has more than seven years
\nexperience as advocate and, therefore, is fully eligible  to
\nbe  appointed  to  the\tHigher Judicial Service and the High
\nCourt was not justified in  not\t considering  her  case\t for
\nappointment.   Hence  we  have\tto examine the only question
\nwhether the appellant is an “advocate” for  the\t purpose  of
\nArticle\t 233(2)\t of  the  Constitution and “from the Bar” as
\nenvisaged in Rule 7 of the Rules.\n<\/p>\n
We have to ascertain the meaning of  the  expression
\n‘advocate  or  a  pleader’  used  in  Article  233(2) of the
\nConstitution and to do so we may use the Advocates  Act\t and
\nthe  rules  framed by the Bar Council. Under Section 2(a) of
\nthe Advocates Act. ‘Advocate’ means advocate entered in\t any
\nroll under the provisions of the Act.\n<\/p>\n
\tRule  49    framed  by\tthe  Bar  Council  reads  as\nfollows:-\n<\/pre>\n
\t“An  Advocate  shall  not  be  a  full-time salaried
\n\temployee   of\tany   person,\tGovernment,    firm,
\n\tcorporation  or\t concern, so long as he continues to
\n\tpractice  and  shall,  on   taking   up\t  any\tsuch
\n\temployment,  intimate the fact to the Bar Council on
\n\twhose roll his name  appears,  and  shall  thereupon
\n\tcease  to  practise  as\t an  Advocate  so long as he
\n\tcontinues in such employment.\n<\/p>\n
\tNothing in this rule shall apply to a Law Officer of
\n\tthe Central Government or  of  a  State\t or  of\t any
\n\tPublic\t Corporation   or  body\t constituted  to  be
\n\tenrolled under the rules of his\t State\tBar  Council
\n\tmade under Section 28(2) (d) read with Section 24(1)\n<\/p>\n
\t(e)  of\t the  Act  desoite  his\t being\ta  full-time
\n\tsalaried employee.\n<\/p>\n
\tLaw Officer for the purpose of\tthis  Rule  means  a
\n\tperson\twho  is\t so  designated\t by  the term of his
\n\tappointment and who, by the said term,\tis  required
\n\tto  act\t and\/or\t plead\tin  Courts  on behalf of his
\n\temployer.”\n<\/p>\n
If a person on being enrolled as an  advocate ceases
\nto practice law and takes up an employment,  such  a  person
\ncan  by\t no stretch of imagination be termed as an advocate.
\nHowever, if a person who is on the rolls of any Bar  Council
\nis engaged either by employment or otherwise of the Union or
\nthe  State  or any Corporate body or person practices before
\nCourt as an advocate for and on behalf of  such\t Government,
\nCorporation  or authority or person, the question is whether
\nsuch a person also answers the description  of\tan  advocate
\nunder  the Act. That is the precise question arising for our
\nconsideration in this case.\n<\/p>\n
This Court in I.A.  No.32 of 1995 in Review Petition
\nNo.  248  of 1994 in Writ Petition (Civil) No.\t1022 of 1989
\nAll India Judges Association Vs.  Union of India decided  on
\n10.5.1985 held that :-\n<\/p>\n
\t  “There is no doubt in\t our  minds  that  what\t was
\n\t  intended by the provision was that a candidate for
\n\t  appointment  to judicial office should be a person
\n\t  who had three years experience of practice  as  an
\n\t  advocate.   He  must be a lawyer in the sense that
\n\t  he regularly practices before a Court or tribunal,
\n\t  who appears for his clients before  the  Court  or
\n\t  Tribunal.   it  may be that in a given case he may
\n\t  do so only for a client who is his employer.”\n<\/p><\/blockquote>\n
For  purposes  of  Advocates  Act  and\tthe   Rules   framed
\nthereunder  the Law Officer (Public Prosecutor or Government
\nCounsel) will continue to be an advocate.  The intention  of
\nthe   relevant\tRules  is  that\t a  candidate  eligible\t for
\nappointment to Higher Judicial Service should  be  a  person
\nwho   regularly\t practices  before  the\t Court\tor  Tribunal
\nappearing for a client.\n<\/p>\n
In  Oma\t Shanker Sharma’s case, the Delhi High Court
\napproached the matter in too pedantic a manner losing  sight
\nof  the\t object\t of  recruitment under Article 233(2) of the
\nConstitution.  Whenever any recruitment is conducted to fill
\nup any post, the area of recruitment must be as broad  based
\nas Rules  permit.    To restrict it to advocates who are not
\nengaged in the manner stated by us earlier in this order  is
\ntoo  narrow a view, for, the object of recruitment is to get
\npersons of necessary qualification, experience and knowledge
\nof life.  A Government Advocate or a Government Pleader.  He
\ntoo gets experience in handling various types of cases apart
\nfrom  dealing  with  the   officers   of   the\t Government.
\nExperience   gained   by  such\tpersons\t who  fall  in\tthis
\ndescription,  cannot  be  stated  to   be   irrelevant\t nor
\ndetrimental  to\t selection  to\tthe posts of Higher Judicial
\nService.   The\texpression  ‘members  of  the  Bar’  in\t the
\nrelevant  rule\twould  only  mean that a particular class of
\npersons who are actually practising  in\t courts\t of  law  as
\npleaders or  advocates.\t In a very general sense an advocate
\nis a person who acts or pleads for another in a court and if
\na public prosecutor or a Government counsel is on the  rolls
\nof  the\t Bar  Council  and is entitled to practice under the
\nAct, he answers the description of an advocate.
\nany post, the area
\nUnder Rule 49 of the Bar Council of India  Rules  an
\nadvocate  shall\t not  be a full time employee of any person,
\nGovernment, Firm. Corporation or concern and  on  taking  up
\nsuch  employment  shall\t intimate such fact to the concerned
\nBar Council and shall cease to practise as long as he is  in
\nsuch employment. However, an exception is made in such cases
\nto  Law\t Officer  is  required\tto  act or plead in Court on
\nbehalf of others. It is only to those who  fall\t into  other
\ncategories  of\temployment  that the bar under rule 49 would
\napply. An advocate employed by\tthe  Government\t or  a\tBody
\nCorporate  as  its  Law\t Officer even on terms of payment of
\nsalary would not cease to be an advocate in terms of Rule 49
\nif the condition is that such advocate is required to act or
\nplead in  Courts  on  behalf  of  the  employer.  The  test,
\ntherefore, is not whether such person is engaged on terms of
\nsalary\tor  by\tpayment\t of  remuneration, but whether he is
\nengaged to act or plead on its behalf in a Court of  law  as
\nan  advocate. In that event the terms of engagement will not
\nmatter at all. What is of essence is as\t to  what  such\t Law
\nOfficer\t engaged by the Government does – whether he acts or
\npleads in Court on behalf of his employer or  otherwise.  If
\nhe is not acting or pleading on behalf of his employer, then
\nhe  ceases to be an advocate. If the terms of engagement are
\nsuch that he does not have to act or plead, but\t does  other
\nkinds  of  work,  then\the  becomes  a\tmere employee of the
\nGovernment or the Body Corporate. Therefore, Bar Council  of
\nIndia\thas  understood the expression ‘advocate’ as one who
\nis actually practising before courts which expression  would
\ninclude even those who are law officers appointed as such by
\nthe Government or body corporate.\n<\/p>\n
If  that be the true position, we fail to understand
\nhow the object of recruitment could  be\t defeated  if  these
\npersons\t are  also allowed to participate in the recruitment
\nprocess.  None of the decisions referred to in\tOma  Shanker
\nSharma’s  case\thas examined the matter in this perspective.
\nEither those decisions were concerned with  the\t distinction
\nbetween\t  service   and\t  judicial  service  or\t meaning  of
\nexpression ‘advocates’ in other contexts.  We think it is in
\nthis manner that the expression used in\t Article  233(2)  of
\nthe  Constitution  has to be understood and the rules framed
\nby the Delhi Administration in this regard have to  be\tread
\nin the\t light\t of  the  constitutional  provisions.\t The
\nexpression used ‘from the Bar’\twould  only  mean  from\t the
\nclass or group of advocates practising in Courts of law.  It
\ndoes not have any other attribute.\n<\/p>\n
On  the above analvsis made by us, we think that the
\nview taken by the High Court cannot be upheld.
\nHowever, we are not in a position to give any relief
\nto the appellant before us now because\twhen  she  Commenced
\nthis  litigation, recruitment process was still going on and
\nit has gone too far ahead. Now that the same is complete and
\nthe selected candidates have already been appointed and they
\nhave reported to duty at different places and they  are\t not
\nimpleaded  as  parties in these proceedings, it would not be
\nproper to upset such appointments. All that we can now do is
\nto direct the authorities concerned including the High Court
\nand Government to process the applications  for\t recruitment
\nof  candidates\tin  future  in\tthe light of the position as
\nexplained above. If there are any pending recruitments,\t the
\nview  taken by us shall be applied to them also. The appeal,
\ntherefore, stands disposed of in the manner stated above.
\nCIVIL APPEAL NO> S3022 AND 3022 OF 1997
\nThese two matters arise out of a common order  which
\nwas the subject matter of Civil Appeal No.  3021\/97 which we
\nhave disposed  of  just now.  Following the decision and for
\nthe  reasons  stated  therein,\tthese  appeals\talso   stand
\ndisposed of in the same terms as set forth therein.
\nCIVIL APPEAL NO.8359 AND 8360 OF 1997
\nThese appeals arise out of a common  order  made  by
\nthe  High  Court  of Judicature at Allahabad on 26.8.1997 in
\ncivil Miscellaneous Writ Petition Nos.\t37519  of  1996\t and
\n37059  of  1996\t on identical considerations as available in
\nthe order made by the High Court of Delhi in  Writ  Petition
\nNo.   286  of  1997  which  was\t the subject matter of Civil
\nAppeal No.  3021 of 1997.  Following the said  decision\t and
\nfor  the  reasons  stated  therein, these appeals also stand
\ndisposed of in the same terms as set forth in that case.
\nCIVIL PETTITION (CIVIL) NO> 189 OF 1997
\nIn this\t Writ  Petition\t under\tArticle\t 32  of\t the
\nConstitution,  the  petitioner\tseeks  for  a  direction  to
\nconsider his  candidature  for\tappointment  to\t the  Higher
\nJudicial Service in the National Capital Territory of Delhi.
\nWe  have  examined the relevant rules and passed an order in
\nCivil Appeal No.  3021 of 1997.\t Following  the\t order\tmade
\ntherein,  this\tWrit Petition stands disposed of in the same
\nterms as set forth in C.A.No.  3021\/97.\n<\/p>\n
WRIT PETITION (CIVIL) NO. 2 OF 1998
\nIn this\t Writ  Petition\t under\tArticle\t 32  of\t the
\nConstitution,  the  petitioner is seeking for a direction to
\nconsider his candidature for appointment to Higher  Judicial
\nService\t in  the  State\t of  Rajasthan. We have examined the
\nposition of similar claims  and\t declared  the\tlaw  in\t the
\nmatter.\t If the petitioner satisfies the conditions thereto,
\nhe  may\t place\tnecessary  material  before  the   concerned
\nauthority.  We\thope the same would be examined in the light
\nof the decision rendered by us in Civil Appeal No.  3021\/97.
\nSubject\t to  what  is  stated  above,  this Writ petition is
\ndisposed of.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sushma Suri Etc vs Govt. Of National Captial … on 8 October, 1998 Bench: K.T.Thomas, S.Rajendra Babu 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-584","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSushma Suri Etc vs Govt. 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