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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

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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

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       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

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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

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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.