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PETITIONER: CHANDRA PRAKASH AGARWAL

       Vs.

RESPONDENT: CHATURBHUJ DAS PARIKH & ORS.

DATE OF JUDGMENT: 18/12/1969

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. SIKRI, S.M. BHARGAVA, VISHISHTHA MITTER, G.K. VAIDYIALINGAM, C.A.

CITATION:  1970 AIR 1061            1970 SCR  (3) 354  1970 SCC  (1) 182

ACT: Constitution of, India, 1950, Art. 217(2)(b)-"Advocate of  a High  Court",  meaning  of  Art.  124(3)  and   233(2)-Legal Practitioners Act, 1897-Bar Councils Act, 1926.

HEADNOTE: The  appointment  of the respondent as a Judge of  the  High Court  was  challenged  on the ground  that  though  he  was enrolled as an advocate more than twenty years ago he  could not ’claim to be one who "has for at least ten years been an advocate of a High Court" as he was all along practicing  in the Muffasil and not in the High Court. HELD : The expression "an Advocate of a High Court" in  Art. 217(2)(b) mean an advocate on the roll of a, High Court  and entitled as of right by that reason to practice in, the High Court.  There is nothing In the Article to indicate that  an Advocate  of a High Court can only be that advocate who  has been practising in the High Court. [358 HI Sengalani Gramani v. Subayya Nadar, A.I.R. 1967 Mad. 344 and V.   G. Row v. Alogiriswamy, A.I.R. 1967 Mad. 347,  referred to.

JUDGMENT: CIVIL  APPELLATE.JURISDICTION  : Civil Appeal  No.  2331  of 1968. Appeal  from the judgment and order dated July 24,  1968  of the  Allahabad High Court in Civil Misc.  Writ No. 14433  of 1968. M.P.  Bajpai,  S.  M.  Jain and G.  M.  Wantoo,  for  the appellant. O.   P. Rana, for respondents Nos. 1, 2 and 5. I.   N. Shroff, for respondent No. 3. L.   M. Singhvi and S. P. Nayar, for respondent No. 4. Shelat, J. I he appellant filed a writ petition in the  High Court at Allahabad for a quo warranto against respondent  1, challenging therein his appointment as 4 Judge of that  High

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Court.   The ground on which he challenged  the  appointment was  that  though respondent 1 was enrolled as  an  advocate more  than 20 years ago, he could not still claim to be  one who  "has for at least ten years been an advocate of a  High Court" within,.the meaning of Art.               355 217(2)(b)  of the Constitution, as admittedly  respondent  1 was  all  along practising at Benaras and not  in  the  High Court. The  writ petition came up for a preliminary hearing  before W.  Broome  and G. Kumar, JJ., when it was  urged  that  the expression  "an advocate of a High Court" in Art.  217(2)(b) meant  an advocate practising in the High Court and not  one practising  in  a court or courts  subordinate  to-the  High Court.  In support of that interpretation, the language used in  Art. 124(3) on the one hand and that in Art.  233(2)  on the  other was relied on to show that the  Constitution  has employed  different  language in connection  with  different purposes thereby making a deliberate distinction between "an advocate"  and  "an advocate of a High  Court",  the  former meaning  an  advocate  practising  in  a  court  or   courts subordinate  to  the High Court and the  latter  meaning  an advocate  practising  in a High Court.  The  contention  was that while dealing with the qualifications for the post of a district judge Art. 233(2) uses the expression "an advocate" as  distinguished  from the expression "advocate of  a  High Court"  in  Arts. 217(2)(b) and 124(3) which  lay  down  the qualifications  for the offices of a Judge of a  High  Court and  a  Judge of the Supreme Court.  The difference  in  the language, it was contended, indicated that whereas a  person to be appointed a district judge need be only an advocate of the  prescribed  standing, the one to be appointed  a  Judge either  of  a  High Court or the Supreme Court  must  be  an advocate who has practised for the required number of  years in  a High Court or two or more High Courts  in  succession. It  was  further contended that such an indication  is  also furnished by the language of Art. 124(3) (a) and (b), in the sense that just as the expression "a judge of a High  Court" in  sub-cl. (a) must mean a Judge who has worked as a  Judge in  the  High Court, the expression "an advocate of  a  High Court" must similarly mean an advocate who has practised  in a High Court. There  was a difference of opinion between the two  learned. Judges,  Broome,  J. held that "on a plain  reading  of  the relevant   clauses"  the  correct  interpretation   of   the expression  "an advocate of a High Court" meant an  advocate enrolled  as  an advocate of a High Court,  irrespective  of whether on such enrolment he practised in a High Court or  a court or courts subordinate to the High Court’ G. Kumar, J., on  the other hand, accepted the contention urged on  behalf of the appellant and held that the expression "  an advocate of  a  High  Court"  meant one who  has  practised  for  the required period in a High Court, and therefore, a person who has  practised only in a court or courts subordinate to  the High Court would not answer the qualification required under Art.  217(2)(b).  Such a difference of opinion  having  thus arisen  between  the  two learned  Judges,  the  matter  was referred to Mathur, 356 J.,  who  agreed  with Broome J.,  and  thereupon  the  writ petition  was dismissed.  The present appeal on  certificate granted by the High Court challenges the correctness of  the order dismissing the writ petition. Counsel  for  the  appellant repeated  before  us  the  same contentions which were urged first before Broome and  Kumar,

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JJ.,  and  later on before- Matkur, J. In  our  opinion  the language used in Art. 217 (2) (b) is plain and incapable  of bearing  an  interpretation  other than  the  one  given  by Broome, J., and agreeing with him by Mathur, J. One broad point against the interpretation sought by counsel for the appellant would be that the expression "an  advocate of  a High Court" in its ordinary plain meaning must mean  a person  who  has  by enrolling himself  under  the  relevant provisions of law become an advocate of a High Court.  If it was  intended that the: qualification under  Art.  217(2)(b) should  be that a person appointed to the office of a  Judge of  a High Court should have practised in a High  Court  and that practising in a court or courts subordinate to it would not  answer the qualification, the language used in  sub-cl. (b) of Art. 217(2) would have been as follows "A person shall not be qualified for appointment as a  Judge of  a  High  Court  unless he has for  at  least  ten  years practised as an advocate in a High Court or in -two or  more such Courts in succession". Apart from this aspect, some of the earlier statutes bearing on the same subject have also used the very same or  similar expression.  The Legal Practitioners Act, 1879 defined by S. 3  a "legal practitioner" as meaning an Advocate,  Vakil  or Attorney  of any High Court, a Pleader, Mukhtar or  Revenue- agent.  Sec. 4 of that Act provided "Every  person  now or hereafter entered as an  Advocate  or Vakil on the roll of any High Court under the Letters Patent constituting’such Court, or under section 41 of this Act, or enrolled as a pleader in the Chief Court of the Punjab under section 8 of this Act, shall be entitled to practise in  all the Courts subordinate to the Court on the roll of which  he is   entered-and  any  person  so  entered  who   ordinarily practises in the Court on the roll of which he is entered or some   Court  subordinate  thereto  shall,   notwithstanding anything herein contained, be entitled, as such, to practise in  any Court in the territories to which this  Act  extends other than a High Court on whose roll he is not entered, or, with               357 the permission of the Court-in any High Court on whose  roll he is not entered-." Sec.  41 of the Act empowered a High Court to make rules  as to the qualifications and admission of proper persons to  be "Advocates of the Court" and subject to such rules to  enrol such  and  so  many  Advocates as  it  thought  fit.   These provisions clearly show that advocates enrolled-under s.  41 were  enrolled  as  advocates  of  a  High  Court  and  were entitled,  once  enrolled, to practise  either  in.the  High Court  or  courts subordinate to such High  Court  or  both. There  was  thus  in the case of advocates  so  enrolled  no distinction  between those who practiced in the  High  Court and  those who practiced in the courts subordinate  to  such High Court as they were entitled on enrolment, as aforesaid, to practise either in the High Court or in a court or courts subordinate  thereto or both.  The Indian Bar Councils  Act, XXXVIIII  of  1926 also defined an  ’advocate’  meaning  one "entered in the roll of advocates of a High Court under  the provisions of this Act." Section 8 laid down that no  person would be entitled as of right to practise in any High  Court unless his name was entered in the roll of "the advocates of the  High Court maintained under this Act." Under  s.  8(2), the High Court was required to prepare and maintain "a  roll of  advocates of the High Court" in which should be  entered the names of (a) all persons who were, as advocates,  vakils or  pleaders, entitled as of right to practise in  the  High

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Court  - immediately before the date on which  this  section came  into  force  in respect thereof;  and  (b)  all  other persons  who  were  admitted to be "advocates  of  the  High Court" under this Act.  Section 9 empowered the Bar  Council to  make  rules to regulate the admission of persons  to  be "advocates of the High Court", and s. 1 0 gave power to  the High  Court  in the manner therein  provided  to  reprimand, suspend  or remove from practice "any advocate of  the  High Court"  whom  it  found  guilty  of  professional  or  other misconduct.   Section  14(1)  of the Act  provided  that  an advocate, i.e., one whose name was entered under this Act in the-roll of advocates of a High Court, shall be entitled  as of  right  to practise in the High Court of which he  is  an advocate or in any other court save as otherwise provided by sub-s. 2 or by or under any other law for the time being  in force.   Once,  therefore,  the name  of-  an  advocate  was entered  in the roll of advocates of a High Court under  one or  the other Act, he was entitled to practise in  the  High Court  and  in courts subordinate thereto or  in  any  court subject of course to the provisions aforesaid.  He was  thus an  advocate  of the High Court irrespective of  whether  he practiced  in  the High Court or in the  courts  subordinate thereto, and as seen from s. 10 of the Bar Councils Act,  he became amenable to the disciplinary jurisdiction of the High Court by reason of his being enrolled as an advocate of  the High Court. L7Sup.  Cl((NP)70-8 358 The   expression  "an  advocate  of  a  High  Court"   must, therefore,  mean,  in  the light  of  these  provisions,  an advocate  whose name has been enrolled as an advocate  of  a High  Court,  no matter  whether he practised  in  the  High Court  itself or in courts subordinate to it or  both.   The expression "an advocate or a pleader of a High Court" having thus acquired the meaning as aforesaid, it must be  presumed that a similar expression, namely "a pleader of a High Court for  a period of -not less than ten years" was used  in  the same  sense in S. 101(3)(d) of the Government of India  Act, 1915, when that section laid down the qualifications for the office of a Judge of a High Court in the case of a  pleader. The  same phraseology was also repeated in s.  220(3)(d)  of the  Government -of India Act, 1935, except for one  change, namely, that in calculating 10 years’ standing, his standing as a pleader of 2 or more High Courts in succession was also to be included. It will be noticed that in the latter part of sub-s. 3 of S. 220,  which provided that in calculating the  period  during which  a person had been a pleader, the period during  which he had held judicial office after he became a pleader  shall be  included, the expression used is simply a "pleader"  and not a pleader of any High Court.  But the word "pleader"  in this  part of s. 220(3) must obviously mean the same  person as "the pleader of any High Court" mentioned earlier in  the same sub-section because the period during which he held any judicial  office was to be reckoned for his standing of  ten years  as.  a pleader of a High Court.  This  clearly  high- lights the point that what s.220(3) in the 1935 Act required as a qualification was that a person to be appointed a Judge of a High Court had to have ten years’ standing as a pleader of  any  High  Court, which meant that  he  must  have  been enrolled  as  a pleader of any High Court for  that  period. The  question as to where he was practising, whether in  the High Court itself or in courts subordinate thereto, does not appear to make any difference.  The same phraseology, except for  the  change  from  the  word  ’Pleader’  to  the   word ’advocate’  has been carried into Art. 217(2)(b).  That  was

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because  under S. 8 of the Bar Council’s Act the roll  which the  High Court was to prepare and maintain was the roll  of the  advocates  of the High Court  which  included  pleaders entitled  as  of  right  to  practise  in  the  High   Court immediately  before the date on which S. 8 of that  Act  was brought into force. It  seems,  therefore,  indisputable  that  the   expression ’pleader  of a High Court’ used in the Constitution Acts  of 1915  and  1935 and the expression "an advocate  of  a  High Court"  used  in  Arts. 217 (2) (b) and 124  (3)  must  mean respectively a pleader or an advocate on the roll as such of a  High  Court and entitled as of right by  that  reason  to practise in the High Court.  There is nothing 359 an any of these provisions to indicate that an advocate of a High court can only be that advocate who has been practising in  the  High Court.  If the meaning of the  expression  "an advocate  of  a high Court" as suggested on  behalf  of  the appellant  were  to be accepted a very strange  anomaly,  as pointed  out  by Broome, J., would result  while  construing Art.  124(3), namely, that an advocate who has practised  in the Supreme Court for the required period but not in a  High Court would not be eligible for the office of a Judge of the Supreme  Court.  For these reasons we are in agreement  with Broome  and Mathur, JJ., on the construction placed by  them on  Art. 217 (2) (b).  The first contention of  counsel  for the appellant, therefore, must fail. Counsel  next  relied  on Art. 233 (2)  in  support  of  the construction suggested by him of Art. 217(2)(b) and  pointed out that wherever the Constitution did not wish to insist on an  appointee having been an advocate practising in  a  High Court,  it  has  used a  different  expression,  namely,  an advocate  simpliciter,  as in Art. 233(2).  Art.  233  deals with  appointment  of  district judges  and  cl.  2  thereof provides  that  a person not already in the service  of  the Union or 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.  It is true that in this clause  the word  "advocate" is used without the qualifying words "of  a High Court".  It is difficult, however, to see how the  fact that  the word "advocate" only used in connection  with  the appointment of a district judge would assist counsel in  the construction suggested by him of the expression "advocate of any  High Court" in Art. 217, or that that  expression  must mean an advocate who has had the necessary number of  years’ practice  in.  the High Court itself.  The  distinction,  if any, between the words "an advocate" in Art. 233(2) and  the words "an advocate of a High Court" in Art. 217(2)(b) has no significance in any event after the coming into force of the Advocate Act, 1961, as by virtue of s. 16 of that Act  there are  now only two classes of persons entitled  to  practice, namely, senior advocates and other advocates. We  find that in two of its decisions, in Sengalani  Gramani v.,  Subbayya  Nadar  &  Ors.  ()  and  V.  C.  Row  v.   A. Alagiriswamy  & OrS.(2). the High Court of Madras  also  has interpreted  Art.  217(2)(b)’in the same manner as  we  have done.   In  our  view the  construction  of  Art.  217(2)(b) adopted by Broome, J., and on a reference to him by  Mathur, J., is correct.  The result is that the appeal fails and  is dismissed with costs.  One hearing fee only. Appeal dismissed. Y.P. (1) A.I.R. 1967 Mad. 344. (2).A.I.R. 1967 Mad. 347-

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