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NON-REPORTABLE  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.                       OF 2013  (Arising out of SLP (C) Nos. 23807-23808 of 2012)

Lakshmana Rao Yadavalli & Anr. .....Appellants.

        Versus

The State of Andhra Pradesh & Ors.         …..Respondents            

WITH

CIVIL APPEAL NOs.                OF 2013  (Arising out of SLP (C) Nos.25219-25220 of 2012)

J U D G M E N T

ANIL R. DAVE, J.

1. Leave granted.

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2. Being aggrieved by the Judgment delivered by the High Court of  

Andhra Pradeh in W.P.No.34683 of 2011 and 894 of 2012 dated  

17th July, 2012, the appellants have filed these appeals.   

3. The facts giving rise to the present litigation in a nut-shell are as  

under:

The appellants,  Shri  Lakshmana Rao Yadavalli  and Shri  Dunna  

Ramulu were desirous of being appointed as District and Sessions  

Judges  (Entry  Level)  in  the  A.P.  Higher  Judicial  Service  and  

therefore, had applied for the post and they also found their names  

in the select list at serial nos.9 and 12 respectively.

4. Before  they  could  be  appointed  to  the  post  in  question,  Writ  

Petition Nos.34683 of 2011 and 894 of 2012 had been filed in the  

High Court  wherein  their  selection  had been challenged  on the  

ground that the appellants had been working as Assistant Public  

Prosecutors and as such, they should not have been considered as  

advocates having standing of seven years at the Bar and according  

to  the  submissions  made  in  the  petitions,  challenging  their  

selection, a person working as a Public Prosecutor cannot be said  

to  be  an  advocate  practising  at  Bar  because  of  his  being  in  

employment  of  the  State  of  Andhra  Pradesh.   Moreover,  

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Lakshmana Rao Yadavalli, the first appellant’s selection had also  

been challenged on an additional ground that he had not completed  

35 years of age at the time when the post in question had been  

advertised.  According to the submissions made before the High  

Court, a person cannot be appointed to the post in question till he  

completes the age of 35 years.

5. After hearing the concerned parties, the aforestated petitions had  

been  allowed  and  therefore,  the  present  appellants  who  were  

respondents in the aforestated petitions have not been appointed to  

the post in question.

6. In the aforestated  circumstances,  the appellants  have challenged  

the validity of the aforestated Judgment delivered by the Andhra  

Pradesh High Court.  

7. The learned counsel appearing for the appellants has submitted that  

the issue involved in the present appeals had also arisen in Civil  

Appeal No.10836 of 2013 titled  Sasidhar Reddy Sura vs.  

The State of Andhra Pradesh & Ors  .    decided on 05th December,  

2013  as well as in the Judgment delivered by this Court in the case  

of  Deepak Aggarwal v.  Keshav Kaushik and others [2013(1)  

SCALE 564].  In the above referred case a question that had been  

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raised before the court was whether a Public Prosecutor/Assistant  

Public  Prosecutor/District  Attorney/Assistant  District  

Attorney/Deputy Advocate General, who is in full time employ of  

the Government, ceases to be an advocate or pleader within the  

meaning of Article 233(2) of the Constitution of India.

8. Ultimately, this Court came to the conclusion that the appellant in  

the said case had been practising as an advocate, therefore, he was  

eligible for the judicial post.  Similarly, in the case on hand the  

appellants  were practising advocates though they were full  time  

employees  and  therefore,  they  are  eligible  to  be  appointed  as  

Judges.

9. In the case of Deepak Aggarwal (supra) this Court has held that  

simply because a person has been appointed as an Assistant Public  

Prosecutor and as such he is in employment of the Government,  

cannot be a ground for not selecting him to a judicial post on the  

ground that he was not an advocate practising at the Bar.  The ratio  

of the said judgment is that an Assistant Public Prosecutor is also  

an advocate who is practising at the Bar.

10.  In view of the aforestated legal position, in our opinion, the High  

Court was not right in considering the appellants as dis-qualified  

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candidates  as  they  were  in  full  time  employment  of  the  

Government.

11. So far as appellant no.1 herein is concerned, the additional ground  

which had been raised against him before the High Court was that  

he  had  not  completed  35  years  of  age  at  the  time  when  the  

advertisement inviting applications for appointment to the post in  

question had been published.  This Court has taken a view in Civil  

Appeal No.10836 of 2013, that it is not necessary that a candidate  

should have completed 35 years of age for being appointed to the  

post  of  a  District  and Sessions  Judge (Entry Level)  in the A.P.  

Higher Judicial Service. The reason given by this Court is that the  

recruitment rules framed for appointment to the post in question by  

the Andhra Pradesh High Court do not provide for any minimum  

age and simply because the Shetty Commission had recommended  

that only a person who had completed 35 years of age should be  

appointed  to  the  post  of  a  District  and  Sessions  Judge  (Entry  

Level)  could  not  have  been  the  reason  for  not  appointing  the  

present appellant no.1.

12.For the aforestated reasons, in our opinion, the reasons assigned by  

the  High  Court  for  not  appointing  the  appellants  to  the  post  in  

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question,  are not correct  and therefore,  we quash and set  aside the  

impugned judgment so far as it pertains to the present two appellants.  

The appeals are allowed with no order as to costs.  

13.We  direct  the  High  Court  and  the  respondent-State  to  give  

appointment to the appellants to the post in question with effect from  

the date on which they ought to have been appointed, however, we  

clarify that they shall not be paid salary for the period during which  

they have not worked as  District and Sessions Judges.  The appellants  

shall also be placed at the appropriate place in the seniority list of the  

District  and Sessions  Judges  after  considering their  position  in  the  

merit list. We are sure that the respondent- High Court as well as the  

respondent-State shall do the needful for giving the appointment to the  

appellants at an early date.

C.A.Nos……..………./2013  (Arising out of SLP(C) Nos.25219-25220/2012)

1. Leave granted.

2. The facts giving rise to the present appeals are not much different than  

the  one  which  have  been  decided  and  discussed  above  in  Civil  

Appeals arising out of SLP(C) Nos.23807-23808 of 2012.

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3. In the instant case, the present appellant was working as a full time  

employee of the Andhra Pradesh Court as Assistant Public Prosecutor  

as well as that she had not completed minimum age of 35 years at the  

time of publication of  advertisement  and therefore,  the High Court  

was of the view that she could not have been appointed as a District  

and Sessions Judge (Entry Level) in the A.P. Higher Judicial Service  

for the reasons given in the aforestated judgment.  Thus, the appellant  

though had been selected as she found her name in the select list at  

serial no.10, but had not appointed.

4. For  the  reasons  recorded  in  Civil  Appeals  arising  out  of  SLP(C)  

Nos.23807-23808 of 2012, the present appeals are allowed and it is  

directed that the High Court as well as the respondent-State will do  

the needful for giving appointment to the appellant with retrospective  

effect i.e. from the date on which she ought to have been appointed,  

however, she shall not be paid salary for the period during which she  

has not worked as a District & Sessions Judge.  We are sure that the  

respondents will do the needful for the appointment of the appellant at  

an early date.   

5. The appeals are allowed with no order as to costs.

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……………………….J. (ANIL R. DAVE)

……………………….J. (DIPAK MISRA)

New Delhi December 06, 2013

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