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PETITIONER: RAMESHWAR DAYAL

       Vs.

RESPONDENT: THE STATE OF PUNJAB AND OTHERS

DATE OF JUDGMENT: 05/12/1960

BENCH: DAS, S.K. BENCH: DAS, S.K. SINHA, BHUVNESHWAR P.(CJ) GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.

CITATION:  1961 AIR  816            1961 SCR  (2) 874  CITATOR INFO :  D          1966 SC1987  (17)  D          1985 SC 308  (2,3)

ACT: District  Judges--Eligibility  for  appointment--Appointment under  the Constitution--Qualifications--Period of  Practice as  Advocate, if includes Period of practice in Lahore  High Court---High Courts (Punjab) Order,1947, cl. 6--Bar Councils Act,  1926 (38 of 1926), s. 8--Constitution of  India,  Art. 233(2).

HEADNOTE: The  validity  of the appointment of respondents 2 to  6  as District  judges was challenged in a petition filed  by  the appellant under Art. 226 of the Constitution of India before the  High Court of Punjab, on the ground, inter  alia,  that the appointment was made in contravention of Art. 233(2)  of the Constitution of India which lays down that "a person not already  in the service of the Union or of the  State  shall only be eligible to be appointed a district judge if he  has been  for  not  less  than seven  years  an  advocate  or  a pleader..."  The respondents had been enrolled as  advocates of  the Lahore High Court on various dates between 1933  and 1940,  and while respondents 2, 4 and 5 had their  names  on the  roll  of advocates of the Punjab High  Court  and  were practising  as advocates at the time they were appointed  as District  Judges in 1950 and 1952, respondents 3 and  6  did not  have their names factually on the roll when  they  were appointed as District judges in 1957 and 1958.  Respondent 6 had his name so enrolled after his appointment. Under  a notification dated September 28, 1948, ss. 3 to  16 of the Bar Councils Act, 1926, came into force in respect of the East Punjab High Court, by virtue of which a Bar Council was  constituted and a roll of advocates had to be  prepared and maintained by the High Court in accordance with s. 8  of the  Act.   The  proviso to sub-s. (2) of S. 8  of  the  Act required them to deposit a fee of Rs. 10 payable to the  Bar Council.   The  appellant’s contention was that  after’  the partition of the country, which led to the establishment  of

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a  separate High Court for the province of East  Punjab  the Punjab  High Court was established only on August  15  1947, under  the  High  Courts (Punjab) Order, 1947,  and  as  the respondents did not have seven years’ standing as  advocates with  reference  to their right of practice in  a  court  in India after that date, they did not fulfil the  requirements of  Art. 233(2) When they were appointed as District  Judges and,  therefore,  their appointments  were  constitutionally invalid.  The question was whether the period of seven years referred to in Art. 233(2) must be counted as the 875 standing  of the advocate or pleader with reference  to  his right  of practice in a court in the territory of  India  as defined  in Art.  of the Constitution, or whether any  right of  practice in a court Rat, which was in India  before  the partition of the country in 1947 but which was not in  India since partition, could also be taken into consideration  for the purpose of counting the period of seven years. Held, that under cl. (6) of the High Courts (Punjab)  Order, 1947,  read with s. 8(3) of the Bar Councils Act,  1926,  an advocate of the Punjab High Court was entitled to count  the period  of  his  practice  in  the  Lahore  High  Court  for determining  his  standing  at  the  Bar.   Accordingly   as respondents  2,  4 and 5 continued to be  advocates  of  the Punjab  High  Court  when they were  appointed  as  District judges  and had a standing of more than seven years when  so appointed, they fulfilled the requirements of Art. 233(2) of the Constitution. Held, further, that the effect of cl. (6) of the High Courts (Punjab)  Order,  1947, and s. 8(2)(a) of the  Bar  Councils Act,  1926, was that from August 15, 1947, to September  28, 1948,  advocates who had been enrolled as advocates  of  the Lahore  High Court were recognised as advocates entitled  to practice  in the Punjab High Court, and after September  28, 1948,  they automatically came on the roll of  advocates  of the Punjab High Court, but had to pay a fee of Rs. 10 to the Bar Council.  Consequently, respondents 3 and 6 who did  not cease to be advocates at any time or stage after August  15, 1947,  continued  to be advocates of the Punjab  High  Court till  they  were appointed as District judges  and  had  the necessary standing of seven years to be eligible under  Art. 233(2) of the Constitution.

JUDGMENT: CIVIL APPELLATE JURISDICTION.  Civil Appeal No. 438 of 1960. Appeal  by special leave from the judgment  dated  September 21,  1959,  of the Punjab High Court, Chandigarh,  in  Civil Writ No. 1050 of 1959. A.S.  B.  Chari, M. S. K. Sastri and K. L.  Mehta,  for  the appellant. S.M.  Sikri, Advocate General.for the Punjab, N. S.  Bindra, K. L. Arora and D. Gupta for the respondent No. 1. Gurbachan Singh.  Tirth Singh Munjral and R. H. Dhebar,  for respondents Nos. 2, 3 and 5. A.   V. Viswanatha Sastri, R. Ganapathy Iyer and   D.  Gupta, for respondents Nos. 4 and 6. H. N. Sanyal, Additional Solicitor-General of India, and  D. Gupta, for the Intervener, (Union of India). 876 M. K. Nambiyar, M. S. K. Sastri and K. L.         Mehta, for the Interveners (Om Dutt Sharma and B. D. Pathak). 1960.   December 5. The Judgment of the Court was  delivered by

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S.  leave  K. DAS, J.-This is an appeal by special  from  an order of the High Court of Punjab dated September 21,  1959, by  which  it  summarily dismissed&  petition  made  by  the present  appellant  under Art. 226 of the  Constitution  for certain relief,% in respect of five persons, two of whom are now  working as Additional Judges of the Punjab High  Court, the third as Officiating Judge of the same Court, the fourth as  District  and Sessions Judge, Delhi, and  the  fifth  as Registrar, Punjab High Court, Chandigarh.  Shorn of  details which are not material, the case of the appellant was and is that  the  aforesaid five persons, now respondents  2  to  6 before  us, were not qualified to be appointed  as  District Judges  under Art. 233 of the Constitution at the time  when they  were  so  appointed  by  the  State  Government,   now respondent 1 before us, and, therefore, their appointment as such was constitutionally invalid; and the appellant claimed by  way  of his main relief that a writ in the nature  of  a writ  of quo warranto should issue "ousting them from  their office  and  restraining them from  exercising  the  powers, duties and functions of the posts they are holding and  from claiming  any rights, privileges or emoluments  attached  to their office." Certain other subsidiary or ancillary reliefs were,  also claimed details whereof need not now be  stated, We have stated that the petition was summarily dismissed  by the High Court.  An application for a certificate of fitness having failed in the High Court, the appellant asked for and obtained special leave from this Court. on August 19, 1960. The  appeal  has  been contested by  the  State  of  Punjab, respondent  1,  and the other respondents of  whom  Shamsher Bahadur, Harbans Singh and Gurdev Singh are Justices of  the Punjab High Court, Hans Raj Khanna is District and  Sessions Judge, Delhi, 877 and  P.  R. Sawhney is Registrar of the High  Court.   These respondents  have  filed separate affidavits in  reply,  and some  of  them have been separately represented  and  heard. The  Advocate-General of Punjab has appeared  and  contested the appeal on behalf of respondent 1. The Union of India was originally  a party-respondent to the petition  inasmuch  as the appellant had initially impugned the appointment of  two of  the respondents as High Court Judges; this  relief  was, however,  given up during the pendency of the special  leave petition  and on an application made by the  appellant,  the name of the Union of India was struck off by an order  dated March 18, 1960, leaving the matter in dispute limited to the question  of  the  validity of the  initial  appointment  of respondents  2  to 6 as District Judges  only.   Later,  the Union  of  India  made an application to  intervene  in  the appeal  and in view of the circumstance that a  question  of the interpretation of Art. 233 of Constitution arises in the appeal,  we  have  allowed the  application  and  heard  the learned Additional Solicitor-General, even though the  Union of  India did not appear at an earlier stage to contest  the application which the appellant had made, to expunge it from the category of respondents. The  other persons B. D. Pathak and Om Dutt Sharma had  also filed  a writ petition in the Punjab High Court  challenging the  legality  of the appointment of P. R. Sawhney  who,  it appears,  had  acquitted certain persons in  three  criminal appeals  decided by him on January 22, 1959,  as  Additional District  and Sessions Judge, Delhi, from the decision of  a magistrate  of Delhi in a case in which B. D. Pathak and  Om Dutt Sharma said that they had been assaulted by the persons accused in the case.  They filed three revision petitions in respect of the orders passed, which are pending in the  High

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Court.   In view of these circumstances they have also  been allowed  to intervene in the present appeal in so far as  it relates  to  the appointment of P. R. Sawhney, and  we  have heard learned Counsel on their behalf. 878 On  behalf of the respondents who are no longer  working  as District  Judges a preliminary objection has been  taken  to the  maintainability of the appeal.  It has  been  contended that  the  appeal is now limited to the  question  of  their appointment  as  District Judges and as they are  no  longer holding  the  office of District Judge, the prayer  for  the issue of a writ of quo warranto in respect of that office is no  longer maintainable.  On behalf of the appellant it  has been  submitted  in reply that respondents 2 to  4  are  not permanent Judges of the High Court so that if and when  they revert,  they  must go back to their  substantive  posts  of District  Judges; therefore, the question whether they  were validly appointed to their substantive posts is a live issue and the appellant is entitled to ask this Court to pronounce on  that issue.  The learned Advocate-General has  submitted that the State is anxious to have the decision of this Court on  the legality of the appointments made in order to  avoid future  trouble  and the State does not wish  to  raise  any preliminary  objection to the determination of the  question in issue.  On a careful consideration of the matter, we have come  to the conclusion that the preliminary objection  must be  overruled  and in the circumstances of this  case,  this Court   must  decide  on  the  legality  of   the   impugned appointments. It   would   facilitate  appreciation  of  the   points   in controversy  if  we  state  first,  in  broad  outline,  the circumstances in which respondents 2 to 6 were appointed  as District Judges. (1)..Respondent  2 Shamshere Bahadur, J.) was called to  the Bar  in England on January 26, 1933, by the  Middle  Temple. He  was enrolled as an Advocate of the Lahore High Court  on May  15,  1933,  and practised as such in  that  Court.   On February  9,  1949, he was enrolled as an  Advocate  of  the Federal  Court of India.  On and after August 15,  1947,  he practised as an Advocate of the East Punjab High Court  till he  was  appointed as District and Sessions Judge  on  March 20,1950.   Then he functioned as Legal Remembrancer  of  the State  Government from December 1953 to May 1959,  when,  he was  appointed  as an Additional Judge of  the  Punjab  High Court. 879 (2)..Respondent 3 (Harbans Singh, J.) was also called to the Bar  and  then enrolled as an Advocate  of  the  Lahore High Court on March 5, 1937.  He worked as an Additional District and  Sessions  Judge, s Ferozepore, from July 2, 1947  ,  to February  22, 1948.  He then returned to practice  at  Simla for  a short while.  On March 15, 1948, he worked as  Deputy Custodian, Evacuee Property, till April 17, 1950.  On  April 18,  1950, he was appointed as District and  Sessions  Judge and  on August 11, 1958, he was appointed as  an  Additional Judge of the Punjab High Court. (3)..Respondent  4  (Gurdev  Singh, J.) was  enrolled  as  a Pleader  of the Lahore High Court on October 25,  1934,  and then as an Advocate of the said Court on December 20,  1938. He was enrolled as an Advocate of the Federal Court of India on  May 29, 1948, and was continuously in practice  till  he was appointed as District and Sessions Judge on February  2. 1952.  On July 11, 1960, he was appointed to officiate as  a Judge of the Punjab High Court. (4)..Respondent  5  (Hans  Raj Khanna)  was  enrolled  as  a

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Pleader of the Lahore High Court on July 17, 1934, and  then enrolled  as an Advocate of the said Court on  December  20, 1940.   He started his practice as a lawyer at Amritsar  and he  continued  his practice there till  his  appointment  as District and Sessions Judge.  His name was borne on the Roll of Advocates prepared by the East Punjab High Court when  he was appointed as District and Sessions Judge on February..1, 1952. (5)..Respondent 6 (P.  R. Sawhney) was called to the Bar   on November  17, 1930, and was enrolled as an Advocate  of  the Lahore  High  Court on March 10, 1931.  After  partition  he shifted to Delhi and worked for sometime as Legal Adviser to the Custodian, Evacuee Property, Delhi.  Then lie  practised for  sometime at Delhi; he then accepted service  under  the Ministry of Rehabilitation as an Officer on Special Duty and Administrator,  Rajpura  Township.  On March  30,  1949,  he became the chairman, Jullundur Improvement Trust.  On May 6, 1949,  he  got  his  licence  to  practise  as  an  Advocate suspended.  On 880 April  6,  1957, he was appointed as District  and  Sessions Judge. It would thus appear that of the five respondents  mentioned above,  three, namely, Shamshere Bahadur, Gurudev Singh  and Hans Raj Khanna had their names on the Roll of Advocates  of the Punjab High Court before they were appointed as District Judges.   In other words, they were practising as  Advocates at  the time they were so appointed.  Two of  them,  Harbans Singh and P. R. Sawhney, did not have their names  factually on the Roll when they were appointed as District Judges.  P. R.  Sawhney it appears, had his name so enrolled on  October 20, 1959, that is, after his appointment as District  Judge. We  are inviting attention to this distinction  amongst  the respondents at this stage. because as will appear later this distinction  has some bearing on one of the  arguments  made before us on behalf of the appellant. We  proceed  now to a consideration of the  main  contention urged  on  behalf  of.  the  appellant,  namely,  that   the appointment  of  respondents 2 to 6 as District  Judges  was made in contravention of the provisions of. Art. 233 of  the Constitution.  It is convenient to read here Art. 233 of the Constitution: "Art.  233(1).   Appointments  of persons  to  be,  and  the posting and promotion of, district judges in any State shall be  made by the Governor of the State in  consultation  with the  High Court exercising jurisdiction in relation to  such State. (2)..A person not already in the service of the Union or  of the State shall only be eligible to be appointed a  district judge  if  he  has been for not less  than  seven  years  an advocate or, a pleader and is recommended by the High  Court for appointment." Now,  the argument of learned Counsel for the appellant  has ranged  over a wide field; but the point for decision  is  a narrow  one  and  depends  on whether  respondents  2  to  6 fulfilled  the  requirements of el. (2) of Art. 233  of  the Constitution when they were appointed as District Judges  by respondent  1.  That  clause lays down  that  a  person  not already  in the service of the Union or of the  State  shall only be eligible to be 881 appointed  a district judge if (1) he has been for not  less than  seven  years  an  advocate or a  pleader  and  (2)  is recommended  by the High Court for appointment.  As  to  the second   requirement  no  question  arises   here,   because

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admittedly  respondents 2 to 6 were recommended by the  High Court before their appointment.  The dispute is with  regard to the first requirement.  Learned Counsel for the appellant has  contended  that respondents 2 to 6 did not  fulfil  the requirement  of  having been " seven years  an  advocate  or pleader"  and  has  put  his  argument  in  support  of  his contention in the following way.  Firstly, he has  submitted that  the expression "advocate or pleader" is an  expression of  legal  import and must be given its  generally  accepted meaning  at the time the Constitution was adopted; and  that expression according to learned Counsel means an advocate or pleader entitled to appear and plead for another in a  Court in  India, but does not include an advocate or pleader of  a foreign  Court;  for this submission he has  relied  on  the definition  of the expression "legal practitioners"  in  the Legal Practitioners Act, 1879 (XVIII of 1879); of  "pleader" in  the Civil Procedure Code, 1908 (Act V of 1908);  and  of "advocate" in the Bar Councils Act, 1926 (XXXVIII of  1926). Secondly, he has submitted that by reason of the use of  the present perfect tense "has been" in cl. (2) of Art. 233, the rules  of  grammar  require that  the  person  eligible  for appointment  must not only have been an advocate or  pleader before but must be an advocate or pleader at the time he  is appointed to the office of District Judge.  Thirdly, he  has submitted that the period of seven years referred to in  the clause  must be counted as the standing of the  advocate  or pleader with reference to his right of practice in s  Court, in  the  territory  of India as defined in Art.   1  of  the Constitution;  in  other words, any right of practice  in  a Court which was in India before the partition of the country in 1947 but which is not in India since partition, cannot be taken  into  consideration for the purpose of  counting  the period of seven years. We shall presently consider these submissions in so 882 far as they bear on the problem before us.  But before    we do  so,  it is necessary to explain the changes  which  took place  after the partition of the country and led     to the establishment of a High Court of Judicature for the province of  East  Punjab (now called the Punjab High Court  for  the State of Punjab) and how those changes affected the position of  advocates or pleaders who had the right to  practice  in the Lahore High Court of undivided Punjab.  The Independence Act, 1947, brought into existence two independent Dominions- India  and  Pakistan-and  s. 9 thereof  gave  the  Governor- General  power  to make orders inter alia for  bringing  the provisions of the Act into effective operation.  In exercise of  that  power the Governor-General made  the  High  Courts (Punjab)   Order,  1947,  which  established  as  from   the appointed  day (August 15, 1947) a High Court of  Judicature for the then Province of East Punjab.  Clause 6 of the Order is important and must be quoted in full: "6(1)  The  High Court of East Punjab shall  have  the  like powers   to  approve,  admit,  enrol,  remove  and   suspend advocates,  vakils  and attorneys, and to  make  rules  with respect to advocates, vakils and attorneys as are, under the law   in  force  immediately  before  the   appointed   day, exercisable by the High Court at Lahore.  (2) The right of audience in the High Court of East  Punjab shall  be regulated in accordance with the  like  principles as, immediately before the appointed day, are in force  with respect  to  the  right of audience in  the  High  Court  at Lahore: Provided  that, subject to any rule made or direction  given by  the  High Court of East Punjab in the  exercise  of  the

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powers   conferred   by  this  Article,  any   person   who, immediately before the appointed day, is an advocate,  vakil or attorney entitled to practise in the High Court at Lahore shall  be  recognised  as an  advocate,  vakil  or  attorney entitled to practise in the High Court of East Punjab." It  is  also necessary to notice cl. 14 of the  Order  which states  inter alia that "the provisions of this Order  shall have effect subject to any provision made on or 883 after  the appointed day with respect to...............  the High  Court  of East Punjab by any  legislature  or  other.. authority  having power to make such provision." The  points which we must emphasise here are (1) that under el. 6(2) the seniority  of  advocates in the new High Court as  to  their right  of audience was to be regulated by the  principle  in force  in-the  former  High Court and  (2)  that  under  the proviso to cl. 6 any person who before August 15, 1947,  was an  advocate entitled to practise in the Lahore  High  Court was  recognised as an advocate entitled to practise  in  the High  Court  of  East Punjab, subject to any  rule  made  or direction  given by the High Court or any provision made  by the legislature or other authority having power to make such provision.  The Bar Councils Act, 1926, except for ss. 1, 2, 17,18  and 19 did not then apply to the High Court  of  East Punjab.   By  a notification dated September 28,  1948,  the Governor of East Punjab directed that the provisions of  ss. 3 to 16 of the said Act shall come into force in respect  of the  East  Punjab  High Court with effect  from  that  date. Section  3 of the Act says that for every High Court  a  Bar Council  shall be constituted in the manner provided by  the provisions  of the Act.  Section 8 of the Act says  (We  are reading such portion only as is relevant for our purpose):- "S. 8(1) No person shall be entitled as of right to practise in any High Court, unless his name is entered in the roll of the advocates of the High Court maintained under this Act: Provided that nothing in this sub-section shall apply to any attorney of the High Court.: (2)..The  High  Court shall prepare and maintain a  roll  of advocates  of the High Court in which shall be  entered  the names of- (a)..all persons who were, as advocates, vakils or pleaders, entitled  as  of  right  to  practise  in  the  High   Court immediately before the date on which this section comes into force in respect thereof, and (b)..all  other  persons  who  have  been  admitted  to   be advocates of the High Court under this Act: Provided that  such persons shall have paid in 884 respect  of  enrolment the stamp duty,  if  any,  chargeable under the Indian Stamp Act, 1899, and a fee, payable to  the Bar Council, which shall be ten rupees in the     case    of the  persons referred to in clause (a), and in  other  cases such amount as may be prescribed. (3)  Entries  in  the roll shall be made  in  the  order  of seniority and such seniority shall be determined as follows, namely:- (a)..all  such persons as are referred to in clause  (a)  of sub-section (2) shall be entered first in the order in which they  were  respectively  entitled  to  seniority  inter  se immediately before the date on which this section comes into force in respect of the High Court; and (b)..the  seniority  of any other person admitted to  be  an advocate  of the High Court under this Act after  that  date shall  be determined by the date of his admission or, if  he is a barrister, by the date of his admission or the date  on

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which he was called to the Bar, whichever date is earlier: Provided that, for the purposes of clause (b), the seniority of  a person who before his admission to be an advocate  was entitled as of right to practise in another High Court shall be determined by the date on which he became so entitled. (4)..The  respective rights of pre-audience of advocates  of the High Court shall be determined by seniority." It is not very clear from the record before us when the  Bar Council was actually constituted for the Punjab High  Court, but  it was stated at the Bar that the first  election  took place in 1950.  But on January 13, 1949, the High Court made certain  rules under ss. 6 and 12 of the Act.  Rule 2(1)  of tile said rules was in these terms: "Rule  2(1).   The Registrar shall  classify  the  advocates entered  in the roll prepared under section  8,  sub-section (2), of the Indian Councils Act as follows:- (a)..those who have or who on or before the date of election of  the  members of the Bar Council of the High  Court  will have, for not less than 10 years, been entitled as of  right to practise in the High Court; 885 (b)..those  who  other than those mentioned in  clause  (a), are,or who on or before the: date of the election of members of the Bar Council of the High Court may become entitled  to practise in the High Court." We  have,  therefore two distinct periods to keep  in  mind. The.first  period  in between August 15,1947,  to  September 27,1948,when  the main provisions of the Bar  Councils  Act, 1926, were not in. force for  the Punjab High Court  and the right  of  advocates  was regulated by  the,  High   Courts, (punjab) Order, 1947.  The second period,was from  September 28,  1948 when the main provisions. of the Bar Councils  Act wore  brought into force, rules were made thereunder, a  Bar Council was constituted,and a roll of Advocates was prepared and maintained in accordance with a. 8 of the said Act.   It was  in  this second period that the Constitution  of  India came into force on January 26, 1950. This  is  the background against which we have  to  consider the, argument of learned Counsel for the appellant., Even if we  assume without finally pronouncing on their  correctness that learned Counsel is right in his first two  submissions, viz., that the word " advocate" in cl. (2) of Art. 233 moans an  advocate of a Court in India and the appointee  must  be such  an  advocate  at  the  time  of  his  appointment,  no objection on those grounds can be raised to the  appointment of  three of the respondents who were factually on the  roll of Advocates of the Punjab High Court at. the time of  their appointment;  because admittedly they were advocates  in.  a Court in India and continued as such advocates the the dates of  their  appointment.  The only, question with  regard  to them is whether they can count. in the period of seven years their period of practice in or under the Lahore High  Court. The answer to this question is clearly furnished by cl. 6(2) of the High, Courts (Punjab) Order, 1947, read with s.  8(3) of the Bar Councils oils, Act, 1926.  That clause lays  down that  the  right  1 of audience in the High  Court  of  East Punjab is all be regulated in 886 accordance  with the principle in force in the  Lahore  High Court  immediately before the, appointed day.  The  relevant rule  in  the  Lahore,  High Court-  Rules  laid  down  that Advocates who are Barristers shall take precedence inter  se according  to the date of,, call to the Bar;  Advocates  who are  not’  Barristers,  according to  the  dates  when  they became,  entitled  to practice in a High  Court.   The  same

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principle  applied  to the East Punjab High Court,’  and  an advocate  of the Lahore High Court who was recognised as  an advocate entitled to practise in the new High Court  counted his  seniority on the strength of his standing in the Lahore High  Court.   He  did not lose that  seniority,  which  was preserved  by  the  Bar Councils Act, 1926. and  we  see  no reasons  why for the purpose of cl. (2) of Art. 233 such  an advocate should not have the same standing as he has in  the High Court where he is practising. Learned  Counsel  for  the  appellant  has  also  drawn  our attention  to  Explanation 1 to cl (3) of Art. 124,  of  the Constitution relating to the qualifications for  appointment as  a Judge of the Supreme Court and to the  Explanation  to cl.  (2)  of  Art. 217 relating to  the  qualifications  for appointment  as a Judge of a High Court, and  has  submitted that where the Constitution-makers thought it necessary they specifically  provided  for counting the period  in  a  High Court which was formerly in India.  Articles 124 and 217 are differently worded and refer to an additional  qualification of citizenship which is not a requirement of Art., 233,  and we do not think that el. (2) of Art. 233 can be  interpreted in  the  light of Explanations added to Arts. 124  and  217. Article  233  is a self contained  provision  regarding  the appointment  of  District  Judges.  As to a  person  who  is already  in  the  serve of the Union or of  the  State,  no’ special  qualifications are laid down and under el. (1)  the Governor  can appoint such a person as a district  judge  in consultation  with the relevant High Court.  As to a  person not already in service, a qualification is laid down in  el. (2)  and  all  that  is required is that  he  should  be  an advocate or pleader of seven years’ standing.  The 887 clause  does not say how that standing must be reckoned  and if an Advocate of the Punjab High Court is entitled to count the  period  of his practice in the Lahore  High  Court  for determining his standing at the Bar, we see nothing in  Art. 233  which  must lead to the exclusion of  that  period  for determining  his  eligibility for  appointment  as  district judge. What will be the result if the interpretation canvassed  for on  behalf of the appellant is accepted ?  Then,  for  seven years  beginning from August 15, 1947, no member of the  Bar of  the Punjab High Court would be eligible for  appointment as  district judge a result which has only to be  stated  to demonstrate the weakness of the argument.  We have proceeded so  far on the first two submissions of learned Counsel  for the  appellant,  and  on that basis  dealt  with  his  third submission.  It is perhaps necessary to add that we must not be understood to have decided that the expression ’has been’ must always mean what learned Counsel for the appellant says it means according to the strict rules of grammar.  ’It  may be  seriously questioned if an organic Constitution must  be so   narrowly  interpreted,  and  the   learned   Additional Solicitor-General has drawn our attention to other  Articles of the Constitution like Art. 5(c) where in-the context  the expression has a different meaning.  Our attention has  also been  drawn to the decision of the Allahabad High  Court  in Mubarak  Mazdoor  v.  K. K. Banerji (1)  where  a  different meaning  was given to a similar expression occurring in  the proviso to sub-s. (3) of s. 86 of the Representation of  the People Act, 1951.  We consider it unnecessary to pursue this matter further because the respondents.We are now  consider- ing  continued  to be advocates  of the  Punjab  High  Court when  they were appointed as district judges and they had  a standing  of more than seven years when so appointed.   They

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were  clearly eligible for appointment under cl. 2  of  Art. 233 of the Constitution. We now turn to the other two respondents (Harbans Singh  and P. R. Sawhney) whose names were not (1)  A.I.R. 1958 All. 323. 888 factually   on the roll of Advocates at the time they   were appointed  as  district judge& What is their  position?   We consider  that they also fulfiled’ the requirements of  Art. 233  of the Constitution.  Harbans Singh was in  service  of the   State  at  the  time  of  his  appointment,  and   Mr. Viswanantha Sastri appearing for him has submitted that ;el. (2) of Art. 233 did not apply.  We consider that even if  we proceed  on  the  footing  that  both  these  persons   were recruited  from  the  Bar and their appointment  has  to  be tested  by  the requirements of el. (2), we must  hold  that they  fulfilled  those requirements.   They  were  Advocates enrolled  in  the Lahore High Court; this is  not  disputed. Under  cl. 6 of the High Courts (Punjab) Order,  1947,  they were  recognised  as Advocates entitled to practise  in  the Punjab High Court till the Bar Councils Act, 1926, came into force.  Under s. 8 (2)(a) of that Act it was the duty of the High  Court to prepare and maintain a roll of  advocates  in which  their  names should have been entered on the  day  on which  s 8 came into force, that is, on September 28,  1948. The proviso to sub-s. (2) of s. 8 required them to deposit a fee  of Rs. 10 payable to the Bar Council.   Obviously  such payment  could  hardly be made before the  Bar  Council  was constituted.   We do not agree with learned Counsel for  the appellant  and  the interveners (B.  D. Pathak and  Om  Dutt Sharma) that, the proviso had the effect of taking away  the right  which these respondents had to come automatically  on the  roll  of  advocates under s. 8(2)(a) of  the  Act.   We consider  that  the  combined effect of cl. 6  of  the  High Courts  (Punjab)  Order,  1947, and s. 8(2)(a)  of  the  Bar Councils  Act  1926,  was this: from  August  18,  1947,  to September  28,,1948,  they  were  recognised  as   Advocates entitled  to practise in the.  Punjab High Court  and  after September  28, 1948, they automatically came on the roll  of advocates  of the Punjab High Court but had to pay a fee  of Rs.  10  to  the  Bar Council.  They did  not  cease  to  be advocates  at any time or stage after August 15,  1947,  and the* continued to be advocates of the Punjab High Court till they were appointed as District Judges.They also had the 889 necessary standing of seven years to be eligible, under  el. (2) of Art. 233 of the Constitution. These  conclusions  really dispose of the  appeal.   We  may state, however, that ’an alternative argument based on s.  4 of  the  Legal Practitioners Act, 1879, was  also  presented before us on behalf of these respondents.  The argument  was that  the respondents having been enrolled as  advocates  in the  Lahore  High  Court were entitled to  practise  in  any subordinate  Court  in India, and that right was  not  taken away  even after the Lahore High Court ceased to be  a  High Court in the territory of India under the Constitution.   As we  are resting our decision on conclusions drawn  from  the High  Courts  (Punjab)  Order, 1947, and s.  8  of  the  Bar Councils  Act, 1926, we consider it unnecessary  to  examine the  alternative  argument  based  on  s.  4  of  the  Legal Practitioners Act, 1879. The appellant had devoted a large part of his writ  petition to  support  a  contention  that  the  appointment  of   the respondent was bad, because it contravened certain statutory service  Rules.  It was stated by the appellant that in  the

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Punjab   the  judicial  branch  of   superior   appointments consisted  of 27 posts inclusive of eight listed posts;  two out  of  these  eight listed posts  were  reserved  for  the members  of the Bar and six for members of  the  subordinate judicial service.  On the partition of the Province, it  was stated, eleven superior judicial posts were allotted to East Punjab,  and the number was later increased to twelve.   Out of these twelve posts, the appellant contended, onethird was reserved  for the members of the Bar, onethird for what  was called  the Provincial Civil Service  (Judicial’Branch)  and the  rest for recruitment from either of the  aforesaid  two sources  on merit.  The grievance of the appellant is  that, too  many  persons have been recruited from the Bak  to  the detriment  of  the  members  of the  service  to  which  the appellant belongs. We  asked learned Counsel for the appellant to point out  to us any particular statutory rule which has been  contravened by respondent 1 in making the appointments.  Learned Counsel was unable to point 890 out  any  such statutory rule and except  making  a  general grievance that too many persons have been recruited from the Bar,  he was unable even to substantiate that the  one-third reservation  made in favour of the service members has  been violated.   In  any case, unless there is clear proof  of  a breach of a statutory rule in making any of the appointments under  consideration  here,  the point does  not  merit  any discussion.  Such proof is singularly lacking in this case. In the result, the appeal fails and is dismissed with costs.                                        Appeal dismissed.