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REPORTABLE

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL NO.  561     OF 2013 (Arising out of SLP(C) No. 17463 of 2010)

Deepak Aggarwal           ……  Appellant

   Vs.

Keshav Kaushik and others          ……  Respondents WITH

CIVIL  APPEAL NOS.    562-567      OF 2013 (Arising out of SLP(C) Nos. 17723-17728 of 2010)

CIVIL  APPEAL NOS.  568-572     OF 2013 (Arising out of SLP(C) Nos. 17793-17797 of 2010)

CIVIL  APPEAL NOS.     573-578    OF 2013 (Arising out of SLP(C) Nos. 17366-17371 of 2010)

CIVIL  APPEAL NOS.     579-584    OF 2013 (Arising out of SLP(C) Nos. 21344-21349 of 2010)

CIVIL  APPEAL NOS.   585-590     OF 2013 (Arising out of SLP(C) Nos. 23205-23210 of 2010)

CIVIL  APPEAL NOS.      591-596   OF 2013 (Arising out of SLP(C) Nos. 32273-32278 of 2011)

JUDGMENT

R.M. LODHA, J.  

Leave granted.  What is the meaning of  the expression ‘the  

service’ in Article 233(2) of the Constitution of India? What is meant by  

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‘advocate’  or  ‘pleader’  under  Article  233(2)?  Whether  a  District  

Attorney/Additional  District  Attorney/Public  Prosecutor/Assistant  Public  

Prosecutor/Assistant Advocate General, who is full time employee of the  

Government  and  governed  and  regulated  by  the  statutory  rules  of  the  

State and is appointed by direct  recruitment  through the Public Service  

Commission, is eligible for appointment to the post of District Judge under  

Article 233(2) of the Constitution?  These are the questions which have  

been raised for consideration in this group of appeals.

2. The above questions and some other incidental questions in  

these appeals have arisen from the judgment of the Punjab and Haryana  

High Court delivered on 18.05.2010. The Division Bench of the High Court  

by the above judgment disposed of 12 writ petitions wherein challenge was  

laid to the selection and appointment of certain candidates to the post of  

Additional  District  and Sessions Judge in the Haryana Superior  Judicial  

Service  (HSJS)  on  diverse  grounds.  The  High  Court  by  its  judgment  

disposed of the writ petitions in the following manner :

“(A) Selections/appointments  of  respondents  no.  9  –  (Dinesh Kumar  Mittal),  12  (Rajesh Malhotra),  13  (Deepak  Aggarwal), 15 (Chandra Shekhar) and 18 (Desh Raj Chalia)  in CWP No.  9157 of 2008 (wherever they may be in other  writ  petitions)  as  Additional  District  and  Sessions Judges,  are hereby quashed.  This direction shall, however, remain  in abeyance for a period of two months to enable the High  Court to make alternative arrangements;

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(B) As  a  consequence  of  the  quashment  of  the  selections/appointments of above  named respondents, the  resultant five vacancies shall be filled up from the candidates  next in the order of merit, out of the panel prepared by the  Selection Committee;

(C)  The  appointment  of  Fast  Track  Court  Judges by  a  process of absorption after further examination and selection  contained  in  the  recommendation  of  the  Selection  Committee dated  18.03.2008 is affirmed.  

(D) Order dated 22.09.2008 (Annexure P-8 in CWP No.  17708 of 2008 rejecting the request of the High Court  for  de-reservation  of  six  vacancies  (four  Scheduled  Caste,  2  Backward  Classes)  is  hereby  quashed.   Resultantly,  the  matter is remitted back to the Government to re-consider the  request of the High Court for de-reservation in relaxation of  rules  by  the  competent  authority  empowered  under  the  Government instructions dated 7.9.2008 and Rule 31 of the  Haryana  Superior  Judicial  Service  Rules,  2007.   The  process  of  re-consideration  shall  be  completed  within  six  weeks and the decision be communicated to the High Court.   (E) If on such re-consideration,  the State decides to de- reserve  the  vacancies,  candidates  recommended  by  the  High Court vide its recommendation letter dated 25.4.2008,  shall be appointed.”

3. The appellants  in this  group of  seven appeals  are,  Deepak  

Aggarwal, Dinesh Kumar Mittal, Rajesh Malhotra, Chandra Shekhar and  

Desh Raj Chalia, whose selections/appointments as Additional District and  

Sessions Judges have been quashed by the High Court, and the Punjab  

and Haryana High Court, Chandigarh on its administrative side.

4. On  18.05.2007,  the  Punjab  and  Haryana  High  Court,  

Chandigarh  through  its  Registrar  General  issued  a  notification  inviting  

applications  for  recruitment  to  certain  posts  of  Additional  District  and  

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Sessions Judge. The written examinations were conducted pursuant to the  

said  notification  wherein  64  candidates  were  recommended  for  the  

interview. After conducting the interview, the High Court recommended the  

names of 16 candidates in order of merit to the post of Additional District  

and Sessions Judge in the State of Haryana by direct recruitment. Of the  

16 candidates recommended by the High Court, 5 were the  appellants.  

At the time of appointment,  Deepak Aggarwal was working as Assistant  

District  Attorney in Himachal  Pradesh;  Chandra Shekhar  and Desh Raj  

Chalia were working as Assistant District Attorney in the State of Haryana,  

Rajesh Malhotra was working as Public Prosecutor in the office of Central  

Bureau of Investigation and Dinesh Kumar Mittal was working as Deputy  

Advocate General in the office of the Advocate General, Punjab.

5. Based on the recommendation of the High Court, the State of  

Haryana issued appointment orders. Some of the unsuccessful candidates  

filed  writ  petitions  before  the  High  Court  raising  diverse  grounds  of  

challenge.  However,  as  indicated  above,  the  appointments  of  five  

appellants  who  were  working  as  Assistant  District  Attorney/Public  

Prosecutor/Deputy  Advocate  General  have  been  quashed  holding  that  

they did  not  have the requisite  criteria  to qualify  for  the recruitment  as  

contemplated  in  Article  233  of  the  Constitution  and  that  some  of  the  

candidates did not have requisite experience.

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6. Article  233  of  the  Constitution  of  India  provides  for  

appointment of District Judges. It reads as follows:

“233.  Appointment of district judges.—(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.”   

7. Haryana  Superior  Judicial  Service  Rules,  2007  (for  short,  

‘HSJS Rules’) regulate the  appointment of subordinate judges in the State  

of Haryana. Part III of these Rules deals with method of recruitment. Rules  

5,  6  and  11  of  the  HSJS  Rules  are  relevant  for  the  purposes  of  

consideration of these appeals and they read as under :

“R.5.   Recruitment  to  the  Service  shall  be  made  by  the  Governor,—

(i)   by  promotion  from  amongst  the  Haryana  Civil  Service (Judicial Branch) in consultation with the  High Court; and

(ii) by  direct  recruitment  from  amongst  eligible  Advocates  on  the  recommendations  of  the  High Court on the basis of the written and viva  voce test conducted by the High Court.

R.6.  (1)  Recruitment to the Service shall be made,— (a) 50  per  cent  by  promotion  from  amongst  the  Civil  

Judges  (Senior  Division)/Chief  Judicial  Magistrates/Additional Civil Judges (Senior Division)  

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on the basis of principle of merit-cum-seniority and  passing a suitability test;

(b) 25 per cent by promotion strictly on the basis of merit  through  limited  competitive  examination  of  Civil  Judges (Senior  Division)  having  not  less  than  five  years  qualifying  service  as  Civil  Judges  (Senior  Division)/Chief  Judicial  Magistrates/Additional  Civil  Judges (Senior Division); and who are not less than  thirty  five  years  of  age  on  the  last  date  fixed  for  submission of applications for taking up the limited  competitive examinations; and   

(c) 25  per  cent  of  the  posts  shall  be  filled  by  direct  recruitment from amongst the eligible Advocates on  the basis of the written and viva voce test, conducted  by the High Court.

(2) The first and second post would go to category (a) (by  promotion  on  the  basis  of  merit-cum-seniority),  third  post  would go to category (c) (direct recruitment from the bar) and  fourth post would go to category (b) (by limited competitive  examination) of rule 6, and so on.

R.  11.   The  qualifications  for  direct  recruits  shall  be  as  follows :

(a)  must be a citizen of India; (b)   must  have  been  duly  enrolled  as  an  

Advocate and has practiced for  a period  not less than seven years;

(c)   must have attained the age of thirty  five  years  and  have  not  attained  the  age  of  forty five years on the 1st day of January of  the  year  in  which  the  applications  for  recruitment are invited.”    

8. It  will  be  convenient  at  this  stage  to  refer  to  some  other  

provisions  which  have  bearing  in  the  matter  and  are  relevant  for  the  

purpose of these appeals.  Section 2(u) of the Code of Criminal Procedure,  

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1973 (for short, ‘Cr.P.C.’) defines ‘Public Prosecutor’  to mean any person  

appointed  under  Section  24  and  includes  any  person  acting  under  the  

directions  of  a  Public  Prosecutor.   Section  24   deals  with  ‘Public  

Prosecutors’. It reads as under:

“24.  Public  Prosecutors,— (1)  For  every  High  Court,  the  Central  Government  or  the  State  Government  shall,  after  consultation with the High Court, appoint a Public Prosecutor  and  may  also  appoint  one  or  more  Additional  Public  Prosecutors for conducting in such court,  any prosecution,  appeal  or  other  proceeding  on  behalf  of  the  Central  Government or State Government, as the case may be.  (2) The Central Government may appoint one or more Public  Prosecutors for the purpose of conducting any case or class  of cases in any district, or local area.  (3) For every district the State Government shall appoint a  Public  Prosecutor  and  may  also  appoint  one  or  more  Additional Public Prosecutors for the district:  Provided  that  the  Public  Prosecutor  or  Additional  Public  Prosecutor appointed for one district may be appointed also  to be a Public Prosecutor or an Additional Public Prosecutor,  as the case may be, for another district.  (4)  The  District  Magistrate  shall,  in  consultation  with  the  Sessions Judge, prepare, a panel of names of persons, who  are, in his opinion fit to be appointed as Public Prosecutors  or Additional Public Prosecutors for the district.  (5) No person shall be appointed by the State Government  as the Public Prosecutor or Additional Public Prosecutor for  the district unless his name appears in the panel of names  prepared by the District Magistrate under sub-section (4).  (6)  Notwithstanding anything  contained in  sub-section  (5),  where in a State there exists a regular Cadre of Prosecuting  Officers,  the  State  Government  shall  appoint  a  Public  Prosecutor  or  an  Additional  Public  Prosecutor  only  from  among the persons constituting such Cadre:  Provided that where, in the opinion of the State Government,  no  suitable  person  is  available  in  such  Cadre  for  such  appointment  that  Government  may  appoint  a  person  as  Public  Prosecutor  or  Additional  Public  Prosecutor,  as  the  case  may  be,  from the  panel  of  names  prepared  by  the  District Magistrate under sub-section (4).  

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Explanation - For the purposes of this sub-section,--  (a) “regular Cadre of Prosecuting Officers” means a Cadre  of Prosecuting Officers which includes therein the post of a  Public  Prosecutor,  by  whatever  name  called,  and  which  provides for promotion of Assistant Public Prosecutors,  by  whatever name called, to that post;  (b)  “Prosecuting  Officer”  means  a  person,  by  whatever  name called, appointed to perform the functions of a Public  Prosecutor, an Additional Public Prosecutor or an Assistant  Public Prosecutor under this Code.  (7) A person shall be eligible to be appointed as a Public  Prosecutor  or  an  Additional  Public  Prosecutor  under  sub- section  (1)  or  sub-section  (2)  or  sub-section  (3)  or  sub- section (6), only if he has been in practice as an advocate for  not less than seven years.  (8) The Central Government or the State Government may  appoint, for the purposes of any case or class of cases, a  person who has been in practice as an advocate for not less  than ten years as a Special Public Prosecutor:  

"Provided  that  the  Court  may  permit  the  victim  to  engage  an  advocate  of  his  choice  to  assist  the  prosecution under this sub-section."

(9) For the purposes of sub-section (7) and sub-section (8),  the period during which a person has been in practice, as a  pleader,  or  has  rendered  (whether  before  or  after  the  commencement of this Code) service as a Public Prosecutor  or  as  an  Additional  Public  Prosecutor  or  Assistant  Public  Prosecutor or other Prosecuting Officer, by whatever name  called, shall be deemed to be the period during which such  person has been in practice as an advocate.”

9. Some of the States have amended Section 24 Cr.P.C.  Insofar  

as Haryana is concerned, an explanation has been added to sub-section  

(6) of Section 24 with effect from 29.11.1985 which provides that for the  

purpose  of  sub-section  (6),  the  persons  constituting  the  Haryana  State  

Prosecution Legal Service (Group A) or Haryana State Prosecution Legal  

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Service (Group B) shall be deemed to be a regular Cadre of Prosecuting  

Officers.

10. Section 25 Cr.P.C deals with Assistant Public Prosecutors for  

conducting  prosecutions  in  the  court  of  Magistrates.  Section  25A  was  

brought in the Cr.P.C. by Act 25 of 2005. It, inter alia, provides that the  

State Government may establish a Directorate of Prosecution consisting of  

a Director of Prosecution and as many Deputy Directors of Prosecution as  

it thinks fit. Sub-section (5) of Section 25A makes a provision that every  

Public  Prosecutor,  Additional  Public  Prosecutor  and  Special  Public  

Prosecutor appointed by the State Government under sub-section (1) or  

under sub-section (8) of Section 24 to conduct cases in the High Court  

shall be subordinate to the Director of Prosecution. In terms of sub-section  

(6) of Section 25A, every Public Prosecutor, Additional Public Prosecutor  

and Special Public Prosecutor appointed by the State Government under  

sub-section (3) or under sub-section (8) of Section 24 to conduct cases in  

district courts and every Assistant Public Prosecutor appointed under sub-

section (1) of Section 25 shall  be subordinate to the Deputy Director of  

Prosecution. Sub-section (8), however, clarifies that the Advocate General  

for the State while performing the functions of public prosecutor shall not  

be covered by Section 25A.

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11. Section 2(7) of the Code of Civil Procedure, 1908 (for short,  

‘CPC’)  defines  ‘government  pleader’.  According  to  this  provision,  

‘government  pleader’  includes  any  officer  appointed  by  the  State  

Government to perform all or any of the functions expressly imposed by  

the CPC on the government pleader and also any pleader acting under the  

directions of the government pleader.

12. Section 2(15)  CPC defines ‘pleader’ which means any person  

entitled  to  appear  and  plead  for  another  in  court,  and  includes  an  

advocate, a vakil and an attorney of a High Court.

13. Prior to Indian Advocates Act, 1961, [The Indian] Bar Councils  

Act, 1926 (for short, ‘1926 Act’) dealt with the functions of the Bar Council  

and  the admission and enrolment  of  advocates.  Section 2(1)(a)  of  the  

1926 Act had   defined ‘advocate’  as meaning an advocate entered in the  

roll of advocates of a High Court under the provisions of that Act.   

14. Section 8(1) of the 1926 Act provided as under:

“8.Enrolment of  advocates. – (1)  No person shall be entitled  as of right to practice 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.”   

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15. Section  9  of  the  1926  Act  dealt  with  qualifications  and  

admission of advocates while Section 14 provided for right of advocates to  

practice.

16. On constitution of the State Bar Council under the Advocates  

Act, 1961 (for short, ‘1961 Act’), the relevant provisions of the 1926 Act  

stood repealed.   Section 17 of the 1961 Act provides that every State Bar  

Council shall prepare and maintain a roll of advocates. It further provides  

that no person shall be enrolled as an advocate on the roll of more than  

one State Bar Council. Section 24  provides for the eligibility of the persons  

who may be admitted as advocates on State roll. Inter alia, it states that a  

person shall be qualified to be admitted as an advocate on a State roll if he  

fulfills such other conditions as may be specified in the rules made by the  

State Bar Council under Chapter III.   Section 28 empowers a State Bar  

Council to make rules to carry out the purposes of Chapter III. Clause (d),  

sub-section (2) of Section 28 states that such rules may provide for the  

conditions subject to which a person may be admitted as an advocate on  

the State roll.  Chapter IV of the 1961 Act deals with the right to practice.  

This Chapter comprises of five sections.  Section 29 provides that from the  

appointed day, there shall be only one class of persons entitled to practice  

profession of  law,  namely,  advocates.   Section 30 provides  for  right  of  

advocates  to  practice.   Section  33  makes  a  provision  that  except  as  

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otherwise provided in the Act or in any other law for the time being in force,  

no person shall on or after the appointed day, be entitled to practice in any  

event or before any authority or person unless he is enrolled as advocate  

under the Act.   

17. Section 49 gives power to the Bar Council of India to make  

rules for discharging its functions  and also to frame rules in respect of the  

subjects  enumerated  in  clauses  (a)  to  (j).   Clause  (ah)  deals  with  the  

conditions subject to which an advocate shall have the right to practice and  

the circumstances under which a person shall be deemed to practice as an  

advocate in a court. The first proviso following the main Section provides  

that no rules made with reference to clause (c) or  (gg) shall have effect  

unless they have been approved by the Chief Justice of India. The second  

proviso provides that no rules made with reference to clause (e) shall have  

effect  unless  they  have  been  approved  by  the  Central  Government.  

Pursuant to the power given under Section 49, the Bar Council of India has  

framed the Bar Council  of  India Rules (for  short,  ‘BCI  Rules’).  Rule 43  

provides that an advocate, who has taken a full-time service or part-time  

service  or  engaged  in  business  or  any  avocation  inconsistent  with  his  

practising as an advocate,  shall  send a declaration to that effect  to the  

respective State Bar Council within 90 days.  On his failure to do so or in  

the absence of sufficient cause for not doing so, he may face suspension  

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of licence to practice.   Prior to  2001, Rule 49 of the BCI Rules read as  

under :

“49. 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  practice 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  a State or of any Public Corporation or body  constituted by statute who is entitled 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 despite his being a full   time salaried employee.  

Law Officer for the purpose of this Rule means a person who  is so designated by the terms of his appointment and who,  by the said terms, is required to act and/or plead in courts on  behalf of his employer.  

18. By  resolution  dated  22.06.2001,  the  Bar  Council  of  India  

deleted the second and third para of the above rule. The said resolution  

was  published  in  the  Government  Gazette  on  13.10.2001.  The  Chief  

Justice of India gave his consent to the said deletion on 23.04.2008.  Rule  

49 in its present form, consequent on amendment, reads as under:  

“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  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”.   

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19. The High Court  has held,   and in our view rightly,  that  the  

consent of Chief Justice of India was not needed because rule in respect  

of eligibility  is traceable to clause (ah).   The amendment thus became  

effective in any case  on its publication in the Government  Gazette on  

13.10.2001.   

20. The  High  Court  while  considering  the  issue  relating  to  

eligibility  of  the  appellants  for  selection  and  appointment  under  Article  

233(2), dealt with Sections 17, 22, 24, 29 and 33 of the 1961  Act and Rule  

49 of the BCI Rules and observed that an advocate could not be a full-time  

salaried employee of any person, government, firm, corporation or concern  

so long as he continues to practice.  

21.  The  High  Court  referred  to  various  decisions  including  

decisions of this Court in Mundrika Prasad Sinha v. State of Bihar1, Mukul   

Dalal and others v. Union of India and Others2, Kumari Shrilekha Vidyarthi   

and Others v. State of U.P. and Others3, Chandra Mohan v. State of U.P.   

and Others4, Satya Narain Singh v. High Court of Judicature at Allahabad  

and Others5, Sushma Suri  v.  Government of National Capital Territory of   

Delhi and Another6, Satish Kumar Sharma v. Bar Council of H.P.7, Sunil   

1  AIR 1979 SC 1871 2  (1988) 3 SCC 144 3  (1991) 1 SCC 212 4  AIR 1966 SC 1987 5  (1985) 1 SCC 225 6  (1999) 1 SCC 330 7  (2001) 2 SCC 365

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Kumar Goyal  v.  Rajasthan Public  Service Commission8 and finally  held  

that  Dinesh Kumar Mittal,  Rajesh Malhotra,  Deepak Aggarwal,  Chandra  

Shekhar  and  Desh  Raj  Chalia  were  ineligible  at  the  time  of  their  

appointment  as  Additional  District  and  Sessions  Judge.  The  Bench  

formulated its opinion on account of the  following :

“They were in regular government service with the Union or  the State. Their recruitment to the posts of Deputy Advocate  General,  Assistant  District  Attorney’s/Prosecutors  was  pursuant to their selection by the respective Public Service  Commission/Government.  All  of  them were  in  the  graded  pay scale and subjected to all rigors of service conditions of  a government servant known to service jurisprudence. We  may not be misunderstood to mean that the Law Officers as  a  genre  are  ineligible  for  judicial  appointment.  Disqualification/ineligibility is attracted only to such category  of  Law  Officers  who  opt  for  regular  Government  employment. However, no such ineligibility is attached to the  other category of Law Officers who are practicing lawyers  and are engaged on behalf of the Government or any other  organization/authority,  even  on  salary  to  appear  on  their  behalf either under any contractual arrangement or on case  to  case  basis,  without  subjecting  themselves  to  the  conditions of regular government employment such as the  Advocate General, Additional Advocate General in the State,  Assistant Solicitor General or Central Government Standing  counsel  or  any  other  Law  Officer  engaged  by  various  Government Corporations or otherwise who are engaged to  represent them in courts of law.”     

22. The High Court  also held  that  except  Rajesh Malhotra,  the  

other  four,  namely,  Dinesh  Kumar  Mittal,  Deepak  Aggarwal,  Chandra  

Shekhar  and  Desh  Raj  Chalia  were  having  less  than  seven  years  of  

8  (2003) 6 SCC 171

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practice  at  the  Bar  before  their  engagement  as  Assistant  District  

Attorneys/Public Prosecutors.

23. Mr. P.P. Rao, learned senior counsel who led the arguments  

on behalf of the appellants, argued that Article 233(2) of the Constitution is  

a  self-contained  Code.  Service  of  a  Public  Prosecutor  or  an  Assistant  

Public  Prosecutor  or  a  Government  Pleader  does  not  render  a  person  

ineligible for appointment as a District Judge if he has been for not less  

than seven years  an advocate or a pleader.   According to him, it is open  

to the State to appoint a Government Pleader in terms of Section 2(7) of  

C.P.C. for conducting civil cases and Public Prosecutors under Section 24  

of Cr.P.C. for criminal cases on mutually agreed terms, either on a case to  

case basis or piece-rate basis for each item of work done or on a tenure  

basis or on a permanent basis. Though called ‘appointment’, it is in reality  

and in substance an engagement of an advocate for conducting cases in  

courts.  Advocates with experience are only  eligible for  these posts and  

even after appointment as Government Pleader or Public Prosecutor  or  

Assistant  Public  Prosecutor  or  Assistant  District  Attorney,  their  job  is  

exclusively or mainly to conduct cases as advocates in courts. The nature  

of their functions remains the same. They are always Officers of the Court.  

24. It was submitted by Mr. P.P. Rao that the 1961 Act and the  

BCI  Rules,  including  Rule  49  ,  must   be  read  harmoniously  with  the  

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relevant provisions of C.P.C. and Cr.P.C. having regard to the object and  

scheme of appointment of the  Government Pleaders, Public Prosecutors,  

Assistant  Public  Prosecutors  or  Assistant  District  Attorneys  etc.  He  

contended  that   rule  making  power  by  Bar  Council  of  India  cannot  be  

exercised inconsistent with the provisions contained in CPC and Cr.P.C; it  

is not an overriding power and the persons who are eligible in terms of  

Article 233(2) of the Constitution cannot be made ineligible by a rule made  

by the Bar Council of India. According to him, the meaning of the word,  

‘advocate’ occurring in Article 233(2) must be fixed and identified which the  

Constitution makers had in mind. Neither the 1961 Act nor the BCI Rules  

framed thereunder can curtail the meaning of the word  ‘advocate’ that is  

understood under Article 233(2) of the Constitution.

25. Mr. P.P. Rao, learned senior counsel submitted that it could  

never be the intention of the Bar Council of India when it made Rule 49  

that  appointment of  advocate by the Government for conducting its cases  

in courts as an advocate on a full time salary basis would attract the bar in  

Rule  49.  The  bar  applies  to  employees  engaged  for  work  other  than  

conducting cases in courts as advocates. He suggested that in order to  

save the operation of Rule 49, it needs to be read down and the test laid  

down by this Court in Satish Kumar Sharma7 and Sushma Suri6   must be  

applied, i.e. whether a person is engaged to act and/or plead in a court of  

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law as an advocate and not whether such person is engaged on terms of  

salary or payment of remuneration.   In his view, what is important is not  

the  employment  but  the  functions  that  a  Public  Prosecutor  or  a  

Government Pleader discharges.  

26. The contention of Mr. P.P. Rao is that the BCI Rules cannot  

override the operation of any law made by the Parliament, including the  

CPC or the Cr.P.C.,  much less Article 233(2)  of  the Constitution which  

contains  the  word  ‘advocate’  having  a  definite  meaning  i.e.,  person  

enrolled  as  a  member  of  the  Bar  to  conduct  cases  in  courts.   He  

highlighted  the consistent practice before the Constitution and after the  

Constitution  of  the   Government  Pleaders  and  Public  Prosecutors  on  

regular  or  permanent  basis  with  fixed  emoluments  being  appointed  as  

District Judges by way of direct recruitment in view of their experience in  

conducting government cases. He submitted that to declare them ineligible  

would  defeat  the  object  of  recruitment  underlying  Article  233(2)  of  the  

Constitution.   

27. Mr.  A.K.  Ganguli,  learned  senior  counsel  appearing  in  the  

appeals  preferred  by  Dinesh  Kumar  Mittal  adopted  the  arguments  of  

Mr.  P.P.  Rao  and  further  submitted  that  it  is  right  to  practice  that  

determines  whether  one  is  advocate  or  not  and  that  is  what  must  be  

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understood  by  the  term  ‘advocate’  occurring  in  Article  233(2)  of  the  

Constitution.

28. Mr. B.H. Marlapalle, learned senior counsel for the appellant  

Desh  Raj  Chalia,  submitted  that  Article  233(2)  provided  two  different  

sources of appointment to the post of District Judge, namely, by promotion  

from service and by nomination from the law practitioners with practice of  

not less than seven-years.  The requirement of practice for not less than  

seven-years  is  only  for  the appointment  by nomination.  He relied upon  

decisions of this Court in Rameshwar Dayal v. State of Punjab and others9,  

Chandra Mohan4 and Satya Narain Singh5.  Learned senior counsel argued  

that  Section 24,  Cr.P.C.  is  the source of  power  for  appointment  of  the  

Public Prosecutor/Additional Public Prosecutor either as part of the regular  

service cadre or from the panel prepared by the District Magistrate. The  

scheme of Section 24 Cr.P.C. cannot be allowed to be defeated by Rule  

49  of  the  BCI  Rules  as  amended  by  the  resolution  dated  22.06.2001.  

Learned senior counsel submitted that a Public Prosecutor appointed by  

State Government as a part of regular service cadre cannot be excluded  

from the  scheme  of  Section  30  of  the  1961  Act  just  because  he  has  

chosen to appear for the State Government. Any law practitioner/advocate  

has  the  choice  to  restrict  his  practice.   He  heavily  relied  upon  the  

9  AIR 1961 SC 816

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observations  made  by  this  Court  in  paragraphs  6,  10  and  11  of  the  

decision in  Sushma Suri6  and submitted that principles laid down therein  

were fully applicable to the appellant’s submission that he is eligible for  

being selected by nomination to the post of District Judge from amongst  

the law practitioners.        

29. Mr. B.H. Marlapalle referred to various provisions of the 1961  

Act and Rule 49 of the BCI Rules and submitted that any person who is a  

law officer of the State/Central Government and who by the said term is  

required to act and plead in a court on behalf of his employer is entitled to  

be admitted as an advocate to the State roll. Rule 49, as amended by the  

Bar  Council  of  India,   cannot  be interpreted  to  mean that  every  Public  

Prosecutor/Additional  Public  Prosecutor,  who is  appointed  by  the  State  

Government as a part of regular service cadre, ceases to be an advocate.  

If  a   Public  Prosecutor  forming part  of  service cadre,  ceases to be an  

advocate then  his tenure as a Public Prosecutor under Section 24, Cr.P.C.  

would automatically come to an end. Such an interpretation of Rule 49 of  

the BCI Rules would not be proper.

30. Learned senior counsel also challenged the finding recorded  

by the High Court with regard to appellant Desh Raj Chalia that he did not  

complete  seven years  of  law practice.  According  to  him,  his  tenure  as  

Assistant District Attorney was required to be counted for the purpose of  

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computing period of practice  and the appellant had completed more than  

11 years of law practice.

31. Mr.  S.S.  Ray,  learned  counsel  appearing  for  one  of  the  

appellants, argued that the amendment to Rule 49 in 2001 has not affected  

the  position  of  the  appellant  as  an  advocate  in  any  manner  and  the  

judgment of this Court in  Sushma Suri6   is squarely applicable. Learned  

counsel would submit that ‘advocate’ means any person who pleads for his  

client.  The  word,  ‘advocate’  is  genus  whereas  expressions,   Law  

Officer/Assistant District Attorney/Public Prosecutor are species.  They are  

covered within the meaning of  term ‘advocate’. Suspension of the licence  

or deleting the name from the roll of advocates cannot exclude a Public  

Prosecutor  or  Assistant  District  Attorney  from  the  definition  of  word  

‘advocate’.  He  further  argued  that  if  Public  Prosecutor  and  Assistant  

District Attorney are taken out from the definition of ‘advocate’ then they  

cannot plead the case before the court even on behalf of the Government.  

He submitted that  the provisions  contained in CPC and Cr.P.C.  should  

prevail over the BCI Rules.  With regard to interpretation of Article 233(2),  

he adopted the arguments of Mr. P.P. Rao.

32. Mr. Raju Ramchandran, learned senior counsel appeared for  

the  High  Court  of  Punjab  and  Haryana  on  administrative  side.  He  

submitted that District Attorney, Public Prosecutor and Assistant Advocate  

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General are in essence lawyers. Even though Rule 49 was amended by  

the Bar Council of India, yet under the amended rule  District Attorneys,  

Public  Prosecutors/Assistant  Advocate  General  continue  to  appear  as  

advocates as they continue to have their licence.   Rule 49 per se does not  

bar  them from appearing  before  a   court.  Reference was made to  the  

provisions of Haryana State Prosecution Legal Service (Group ‘C’) Rules,  

1979 to show that the Government Pleader and Public Prosecutor may be  

fully  engaged  by  the  Government  but  in  essence  they  are  lawyers  

representing the Government.    He submitted that  High Court  failed to  

notice the explanation to Section 24(6) and its interplay with Section 24(9)  

Cr.P.C.  Learned senior  counsel  suggested   that  the  test  enunciated  in  

Sushma Suri6 , namely, whether he is engaged to act or plead on behalf of  

the employer  in a court of law as an advocate should  be applied to find  

out  whether  the  private  appellants  whose  appointments  have  been  

cancelled met the prescribed eligibility or not.

33. Learned senior counsel sought to distinguish the decision of  

this  Court  in  Mallaraddi  H.  Itagi  &  Ors.  v.  High  Court  of  Karnataka by  

highlighting that  Karnataka Department  of  Prosecution and Government  

Litigation Recruitment Rules, 1962 did not allow the Public Prosecutors to  

appear  as advocates before the Court;  the candidates therein  admitted  

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that  they  were  government  servants;  and  the  candidates  therein  had  

surrendered their licence.     

34. A plea of estoppel was also raised on behalf of the High Court  

and  it  was  submitted  that  the  writ  petitioners  were  estopped  from  

challenging  the  selection  process  as  they  had  taken  a  chance  to  get  

selected  and  after  having  remained  unsuccessful,  they  have  now  

challenged the appointment of successful candidates.  

35. On the other hand, Mr. Prashant Bhushan, learned counsel for  

the respondent – Keshav Kaushik (writ petitioner before the High Court)  in  

the appeal preferred by Deepak Aggarwal, referred to Article 233(2) of the  

Constitution and submitted that in order to be eligible, the candidate  must  

not  be  in  the  service  of  Union  or  the  State  and  must  have  been  an  

advocate for at least seven years. It was submitted that the expression, “if  

he has been for not less than seven years an advocate” must be read to  

mean seven years immediately preceding his appointment/ application. It  

cannot mean any seven years any time in the past. If that interpretation  

were to be accepted, it would mean that a person who is enrolled as an  

advocate for seven years and thereafter took up a job  for the last twenty  

years would also become eligible for being appointed as District Judge.  

This  would  defeat  the  object  of  the  qualification  prescribed  in  Article  

233(2).  

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36. Mr.  Prashant  Bhushan  contended  that  a  Public  Prosecutor  

being a full time employee of the Government, ceases to be an advocate  

by virtue of Rule 49 of the BCI Rules. The candidates whose appointment  

was challenged were in full  time employment  of  the Government;  were  

liable to be transferred and posted with the Government Companies as law  

officers and they have several functions other than appearances in courts  

as  Public  Prosecutors.   Merely  because  one  of  the  functions  of  these  

Public Prosecutors is to appear in courts would not make them advocates  

and eligible for appointment under Article 233 (2)  of the Constitution.  He  

justified the view of the High Court.  

37. Mr.  P.S.  Patwalia,  learned  senior  counsel  also  arguing  for  

respondent no. 1 in the appeal by Chandra Shekhar, submitted that Rule  

49 expressly debars a person from practising as an advocate on taking up  

employment.  Rule  43  of  BCI  Rules  makes  it  imperative  on  any  such  

person to file a declaration within 90 days on taking up employment failing  

which the State Bar Council can suspend the licence of such a person to  

practice. It was submitted that full time employees have a limited right of  

appearance before the courts by virtue of Section 24 Cr.P.C. and Section  

2(7) C.P.C. Such employees can only appear in briefs marked to them by  

State Government for specified courts.  

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38. Chapter IV of the 1961, Act which deals with right to practice,  

was referred to by the learned senior counsel, particularly, Sections 29 to  

33, and it was submitted that on a conjoint reading of these provisions with  

Rules 43 to 49 of the BCI Rules and Section 24 Cr.P.C. and Section 2(7)  

C.P.C.,  Additional  District  Attorney/Public  Prosecutor/Assistant  Advocate  

General   cannot  be said  to practice law.   Reference was made to  the  

Resolution passed by Bar Council of India in this regard which provides  

that  if  a  Public  Prosecutor/Additional  District  Attorney  is  a  whole  time  

employee drawing regular salary, he will not be entitled to be enrolled as  

an advocate.  

39. In support of the above submissions, Mr. P.S. Patwalia relied  

upon  decision of this Court in  Satish Kumar Sharma7  and a decision of  

this Court in Mallaraddi H. Itagi.  Reference was also made to the decision  

of the Karnataka High Court in Mallaraddi H. Itagi  from which the appeals  

were preferred before this Court.  Learned senior counsel  submitted that  

the view taken by Karnataka High Court and upheld by this Court is the  

view which has been taken by various other high courts, namely, Kerala  

High Court in K.R. Biju Babu v. High Court of Kerala & Another10, Jammu  

and Kashmir High Court in Gurjot Kaur and Others v. High Court of Jammu  

and Kashmir  and Another decided on 14.09.2010, Bombay High Court in  

10  (2008) Labour & Industrial Cases 1784

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Sudhakar  Govindrao  Deshpande v.  State of  Maharashtra  and Others11,  

Allahabad High Court in  Akhilesh Kumar Misra and Others v.  The High  

Court  of  Judicature  at  Allahabad and Others12 Rajasthan High Court  in  

Pawan  Kumar  Vashistha v.  High  Court  of  Judicature  for  Rajasthan,   

Jodhpur and Another  decided on 21.02.2012.

40. Mr. P.S. Patwalia  referred to Article 233(2) of the Constitution  

and the decision of this Court in  Chandra Mohan4 and submitted that a  

person already employed in the executive service of a State is ineligible to  

be  appointed.  He  heavily  relied  upon  paragraphs  49  and  50  of  the  

impugned judgment and submitted that the findings returned by the High  

Court were in accord with law.  

41. On behalf of the respondents in the appeal by Dinesh Kumar  

Mittal,  it  was submitted that Article 233(2) of the Constitution lays down  

three essentials for appointment of a person to the post of District Judge  

and all of them are mandatorily required to be fulfilled and are to be read  

simultaneously.  It  was  submitted  that  independence  of  judiciary  is  the  

basic  structure  of  the  Constitution.  The  Public  Prosecutors   holding  a  

regular post in regular pay scale are government servants and they can  

not be treated as ‘advocate’ within the meaning of Sections 24, 29 and 30  

of the 1961 Act read with Rule 49 of the BCI Rules. It was suggested that  

11 (1986) Labour & Industrial Cases 710 12  AIR (1995) Allahabad 148   

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the  words  “has  been”   in  Article  233(2)   must  be  read  to  mean  the  

advocate or pleader who continues to be so at the time of his appointment.  

42. Article  233  of  the  Constitution  makes  provision  for  

appointment  and  qualification  for   District  Judges.  Under  clause  (1)  of  

Article  233  no  special  qualifications  are  laid  down.  The  Governor  can  

appoint a person who is already in service of the Union or of the State as a  

District Judge in consultation with the relevant High Court. Clause (2) of  

Article 233 lays down three essentials for appointment of a person to the  

post of District Judge; (i) a person shall not be in service of the Union or of  

the State; (ii) he has been for not less than seven years an advocate or a  

pleader; and (iii) his name is recommended by the relevant High Court for  

appointment.  In other words, as regards a person not already in service  

what  is required is that  he should be an advocate or pleader  of  seven  

years’ standing and that his name is recommended by the High Court for  

appointment as District Judge. We have to find out what is the meaning of  

the expression “the service”  under Article 233 (2) of the Constitution. The  

expression “the service” occurring in clause (2) of Article 233 came up for  

consideration  before  a  Constitution  Bench  of  this  Court  in  Chandra  

Mohan4.  

43. In the case of  Chandra Mohan4  the facts were these: during  

1961  and  1962,  the  Registrar  of  the  Allahabad  High  Court  called  for  

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applications  for  recruitment  with  regard  to   ten  vacancies  in  the  Uttar  

Pradesh Higher  Judicial  Service  from Barristers,  Advocates,  Vakils  and  

Pleaders of more than seven years’ standing and from judicial officers. The  

Selection Committee, constituted under the Rules, selected six candidates  

for appointment to the said service. The three of the selected candidates  

were advocates and three were judicial officers. The Selection Committee  

sent two lists, one comprising the names of three advocates and the other  

comprising the names of three judicial officers to the High Court.  Chandra  

Mohan, who was Member of U.P. Civil Services (Judicial Branch) and who  

was at that time acting as a District Judge, and some other officers who  

were similarly situated, filed writ petitions in the High Court of Allahabad  

under  Article  226  challenging  the  selection  of  the  six  candidates  for  

appointment to the U.P. Higher Judicial Service. The matter was heard by  

the Division Bench. The members of the Bench  agreed that selection from  

the  Bar  was  good  but  as  regards  selection  from  the  cadre  of  judicial  

officers,  there was difference of opinion on the aspect of non-issuance of  

notification under Article 237 of the Constitution. The matter was referred  

to a third Judge who agreed with one of the Judges who held that selection  

from the  judicial  officers  was also good.   Thus,  the  writ  petitions  were  

dismissed. The High Court on the application for certificate to appeal to  

this Court certified the case a fit one for appeal, consequently, the appeal  

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was  filed.  As  there  was  some  debate  on  the  scope  of  the  certificate  

granted by the High Court, this Court also granted Special Leave to Appeal  

against the order of the High Court. Diverse arguments were advanced on  

behalf of the appellants before this Court. While dealing with the question  

whether  the Governor  can directly  appoint  persons  from services  other  

than the judicial  service as District Judges in consultation with the High  

Court and on a  further question whether the Governor can appoint judicial  

officers as District Judges, this Court dealt with Articles 233, 234, 236 and  

237 of the Constitution and observed in paragraph 15 of the Report (pgs.  

1993-94) as follows:

“The  gist  of  the  said  provisions  may  be  stated  thus.  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.  There  are  two  sources  of  recruitment namely (i) service of the Union or of the State,  and (ii) members of the Bar. The said Judges from the first  source are appointed in consultation with the High Court and  those  from  the  second  source  are  appointed  on  the  recommendation  of  the  High  Court.  But  in  the  case  of  appointments of persons to the judicial service other than as  district  Judges they will  be  made by  the  Governor  of  the  State in accordance with rules framed by him in consultation  with the High Court and the Public Service Commission. But  the High Court has control  over all  the district Courts and  Courts  subordinate  thereto,  subject  to  certain  prescribed  limitations.”   

This  Court  then  in  paragraphs  16  and  17  (pg.  1994)  of  the  Report  

observed as follows:

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“16.  So far there is no dispute. But the real conflict rests on  the question whether the Governor can appoint as district  Judges  persons  from  services  other  than  the  judicial  service; that is to say, can he appoint a person who is in the  police, excise, revenue or such other service as a district  Judge? The acceptance of this position would take us back  to the pre-independence days and that too to the conditions  prevailing in the Princely States. In the Princely States one  used to come across appointments to the judicial service  from  police  and  other  departments.  This  would  also  cut  across  the  well-knit  scheme  of  the  Constitution  and  the  principle  underlying  it,  namely,  the  judiciary  shall  be  an  independent service. Doubtless if Art. 233(1) stood alone, it  may be argued that the Governor may appoint any person  as a district  Judge, whether legally qualified or not,  if  he  belongs to any service under the State. But Art. 233(1) is  nothing more than a declaration of the general power of the  Governor in the matter of appointment of district Judges. It  does not lay down the qualifications of the candidates to be  appointed or denote the sources from which the recruitment  has  to  be  made.  But  the  sources  of  recruitment  are  indicated in Cl  (2)  thereof.  Under Cl.  (2) of  Art.  233 two  sources are given, namely, (i) persons in the service of the  Union or of the State, and (ii) advocate or pleader. Can it be  said  that  in  the  context  of  Ch.  VI  of  Part  VI  of  the  Constitution  “the  service  of  the  Union  or  of  the  State”  means any service of the Union or of the State or does it  mean the judicial service of the Union or of the State? The  setting, viz., the chapter dealing with subordinate Courts, in  which the expression “the service” appears indicates that  the service mentioned therein is the service pertaining to  Courts.  That  apart,  Art.  236(2)  defines  the  expression  “judicial service” to mean a service consisting exclusively of  persons intended to fill the post of district Judge and other  civil judicial posts inferior to the post of district Judge. If this  definition, instead of appearing in Art. 236, is placed as a  clause before Art. 233(2), there cannot be any dispute that  “the  service”  in  Art.  233(2)  can  only  mean  the  judicial  service.  The  circumstance  that  the  definition  of  “judicial  service”  finds  a  place  in  a  subsequent  Article  does  not  necessarily lead to a contrary conclusion. The fact that in  Article 233(2) the expression “the service” is used whereas  in  Arts.  234  and  235  the  expression  “judicial  service”  is  found  is  not  decisive  of  the  question  whether  the  expression “the service” in Art. 233(2) must be something  

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other  than  the  judicial  service,  for,  the  entire  chapter  is  dealing with the judicial service. The definition is exhaustive  of the service. Two expressions in the definition bring out  the  idea that  the  judicial  service consists  of  hierarchy of  judicial  officers  starting  from the  lowest  and  ending  with  district  Judges.  The  expressions  “exclusively”  and  “intended”  emphasise  the  fact  that  the  judicial  service  consists  only  of  persons  intended  to  fill  up  the  post  of  district Judges and other civil judicial posts and that is the  exclusive  service  of  judicial  officers.     Having  defined  “judicial  service”  in  exclusive  terms,  having  provided  for  appointments  to  that  service  and  having  entrusted  the  control of the said service to the care of the High Court, the  makers  of  the  Constitution  would  not  have  conferred  a  blanket power on the Governor to appoint any person from  any service as a district Judge.

17. Reliance is placed upon the decision of this Court in  Rameshwar Dayal v. State of Punjab, (AIR 1961 SC 816),  in support of the contention that “the service” in Art. 233(2)  means any service under the State. The question in that  case was, whether a person whose name was on the roll of  advocates  of  the  East  Punjab  High  Court  could  be  appointed as a district Judge. In the course of the judgment  S.K. Das, J., speaking for the Court, observed :  

“Article 233 is a self-contained provision regarding  the appointment of District Judges. As to a person  who is already in the service of the Union or of the  State, no special qualifications are laid down and  under  Cl.  (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 Cl. (2) and  all  that  is  required  is  that  he  should  be  an  advocate or pleader of seven years’ standing.”

This  passage  is  nothing  more  than  a  summary  of  the  relevant provisions. The question whether “the service” in  Art. 233 (2) is any service of the Union or of the State did  not arise for consideration in that case nor did the Court  express any opinion thereon.”

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Explaining the meaning of the expression, ‘the service’, this is what this  

Court said in paragraph 20 of the Report (Pg. 1995) in Chandra Mohan4.

“……….Though S. 254(1) of  the said Act was couched in  general terms similar to those contained in Art. 233 (1) of the  Constitution, the said rules did not empower him to appoint  to the reserved post of district Judge a person belonging to a  service  other  than  the  judicial  service.  Till  India  attained  independence,  the  position  was  that  district  Judges  were  appointed by the Governor from three sources, namely, (i)  the Indian Civil  Service, (ii) the Provincial Judicial Service,  and (iii)  the Bar.  But  after  India attained independence in  1947,  recruitment  to  the  Indian  Civil  Service  was  discontinued and the Government of India decided that the  members of the newly created Indian Administrative Service  would not be given judicial posts. Thereafter district Judges  have been recruited only from either the judicial service or  from  the  Bar.   There  was  no  case  of  a  member  of  the  executive having been promoted as a district Judge. If that  was the factual position at the time the Constitution came  into force, it is unreasonable to attribute to the makers of the  Constitution,  who  had  so  carefully  provided  for  the  independence of  the  judiciary,  an  intention  to  destroy  the  same by an indirect method. What can be more deleterious  to the good name of the judiciary than to permit at the level  of  district  Judges,  recruitment  from  the  executive  departments?  Therefore,  the  history  of  the  services  also  supports our construction that the expression “the service” in  Art. 233(2) can only mean the judicial service.”   

   44. The Constitution Bench in Chandra Mohan4   has thus clearly  

held that the expression ‘the service’ in Article 233(2) means the judicial  

service.  

45. In  Satya Narain Singh5, this Court again had an occasion to  

consider Article 233 of the Constitution.  This Court referred to an earlier  

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decision of this Court in  Rameshwar Dayal9  and  construed  Article 233 as  

follows:

“…….The first clause deals with “appointments of persons to  be, and the posting and promotion of, District Judges in any  State” while the second clause is confined in its application  to persons “not already in the service of the Union or of the  State”. We may mention here that “service of the Union or of  the  State”  has  been  interpreted  by  this  Court  to  mean  Judicial  Service.  Again  while  the  first  clause  makes  consultation by the Governor of the State with the High Court  necessary, the second clause requires that the High Court  must  recommend  a  person  for  appointment  as  a  District  Judge. It  is only in respect of the persons covered by the  second clause that there is a requirement that a person shall  be eligible for appointment as District Judge if he has been  an advocate or a pleader for not less than 7 years. In other  words, in the case of candidates who are not members of a  Judicial Service they must have been advocates or pleaders  for not less than 7 years and they have to be recommended  by the High Court before they may be appointed as District  Judges, while in the case of candidates who are members of  a Judicial  Service the 7 years'  rule has no application but  there has to  be consultation with  the High Court.  A  clear  distinction is made between the two sources of recruitment  and  the  dichotomy  is  maintained.  The  two  streams  are  separate until they come together by appointment. Obviously  the  same  ship  cannot  sail  both  the  streams  simultaneously………….”.

After referring to  Chandra Mohan4  ,  this Court  in paragraph 5 (pg. 230)  

stated as under :

“5. Posing the question whether the expression “the service  of the Union or of the State” meant any service of the Union  or of the State or whether it meant the Judicial Service of the  Union or of the State, the learned Chief Justice emphatically  held that the expression “the service” in Article 233(2) could  only mean the Judicial Service. But he did not mean by the  above  statement  that  persons  who  are  already  in  the  service, on the recommendation by the High Court can be  

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appointed as District  Judges,  overlooking the claims of all  other seniors in the Subordinate Judiciary contrary to Article  14 and Article 16 of the Constitution.”

46. From the above, we have no doubt that the expression, ‘the  

service’  in Article 233(2) means the “judicial service”. Other members of  

the service of  Union or State are as it  is excluded because Article 233  

contemplates  only  two  sources  from which  the  District  Judges  can  be  

appointed.  These  sources  are:  (i)  judicial  service;  and  (ii)  the  

advocate/pleader or in other words from the Bar.  District Judges can, thus,  

be appointed from no source other than judicial service or from amongst  

advocates. Article 233(2) excludes appointment of District Judges from the  

judicial   service   and   restricts eligibility of appointment as District Judges  

from amongst the advocates or pleaders having practice of not less than  

seven years and who have been recommended by the High Court as such.

47. The  question  that  has  been  raised  before  us  is  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.  

48. In Kumari Shrilekha Vidyarthi3 , this Court dealt with scheme of  

the Cr.P.C. relating to Public Prosecutors and it was held that the Code  

invests  the Public  Prosecutors  with the attribute  of  the holder  of  public  

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office.  In paragraph 14 of the Report (Pgs. 232-233) this Court stated as  

under :

“………..This power of the Public Prosecutor in charge of the  case is derived from statute and the guiding consideration  for it, must be the interest of administration of justice. There  can be no doubt that this function of the Public Prosecutor  relates  to  a  public  purpose  entrusting  him  with  the  responsibility  of  so  acting  only  in  the  interest  of  administration of justice. In the case of Public Prosecutors,  this  additional  public  element  flowing  from  statutory  provisions in the Code of Criminal Procedure, undoubtedly,  invest the Public Prosecutors with the attribute of holder of a  public office which cannot be whittled down by the assertion  that their engagement is purely professional between a client  and his lawyer with no public element attaching to it.”

49. In  State  of  U.P.  and  Others  v.  U.P.  State  Law  Officers   

Association and Others13,  this Court, while distinguishing the judgment of  

this Court in  Kumari Shrilekha Vidyarthi3  ,  observed that appointment of  

lawyers by the Government and the public bodies to conduct work on their  

behalf  and their subsequent removal from such appointment have to be  

examined  from  three  different  angles,  namely,  the  nature  of  the  legal  

profession, the interest of the public and the modes of the appointment and  

removal. With regard to the legal profession, this Court said in paras 14  

and 15 (pg. 216) as under:

“14.  Legal  profession  is  essentially  a  service-oriented  profession. The ancestor of today's lawyer was no more than  a  spokesman  who  rendered  his  services  to  the  needy  members of the society by articulating their case before the  authorities  that  be.  The  services  were  rendered  without  

13  (1994) 2 SCC 204

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regard to the remuneration received or to be received. With  the  growth  of  litigation,  lawyering  became  a  full-time  occupation and most of the lawyers came to depend upon it  as the sole source of livelihood. The nature of the service  rendered by the lawyers was private till the Government and  the public bodies started engaging them to conduct cases on  their behalf. The Government and the public bodies engaged  the  services  of  the  lawyers  purely  on  a  contractual  basis  either for a specified case or for a specified or an unspecified  period. Although the contract in some cases prohibited the  lawyers  from  accepting  private  briefs,  the  nature  of  the  contract did not alter from one of professional engagement  to that of employment. The lawyer of the Government or a  public  body was not  its  employee but  was a professional  practitioner  engaged  to  do  the  specified  work.  This  is  so  even today, though the lawyers on the full-time rolls of the  Government and the public bodies are described as their law  officers. It is precisely for this reason that in the case of such  law officers, the saving clause of Rule 49 of the Bar Council  of  India Rules waives the prohibition imposed by the said  rule  against  the  acceptance  by  a  lawyer  of  a  full-time  employment.

15. The relationship between the lawyer and his client is one  of  trust  and  confidence.  The  client  engages  a  lawyer  for  personal reasons and is at liberty to leave him also, for the  same reasons. He is under no obligation to give reasons for  withdrawing his brief from his lawyer. The lawyer in turn is  not  an  agent  of  his  client  but  his  dignified,  responsible  spokesman. He is not bound to tell the court every fact or  urge every proposition of law which his client wants him to  do, however irrelevant it may be. He is essentially an adviser  to  his  client  and  is  rightly  called  a  counsel  in  some  jurisdictions. Once acquainted with the facts of the case, it is  the lawyer's discretion to choose the facts and the points of  law which he would advance. Being a responsible officer of  the court and an important adjunct of the administration of  justice, the lawyer also owes a duty to the court as well as to  the opposite side. He has to be fair to ensure that justice is  done.  He  demeans  himself  if  he  acts  merely  as  a  mouthpiece  of  his  client.  This  relationship  between  the  lawyer  and the private client is equally valid between him  and the public bodies.”

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50. In  S.B.  Shahane  and  Others v.  State  of  Maharashtra  and  

another14, this Court  held in para 12 (Pg. 43) as under:   

“12. When Assistant Public Prosecutors are appointed under  Section 25 of the Code for conducting prosecutions in courts  of Magistrates in a district fairly and impartially, separating  them from the police officers of the Police Department and  freeing them from the administrative or disciplinary control of  officers  of  the  Police  Department,  are  the  inevitable  consequential  actions  required  to  be  taken  by  the  State  Government  which  appoints  such  Assistant  Public  Prosecutors,  inasmuch  as,  taking  of  such  actions  are  statutory  obligations impliedly  imposed upon it  under  sub- section  (3)  thereof.  When such  consequential  actions  are  taken by the State Government in respect of large number of  persons  appointed  as  Assistant  Public  Prosecutors,  it  becomes necessary for putting them on a separate cadre of  Assistant  Public  Prosecutors  and  creating  a  separate  Prosecution  Department  as  suggested  by  the  Law  Commission  in  its  Report  making  those  Assistant  Public  Prosecutors  subject  to  control  of  their  superiors  in  the  hierarchy in matters of administration and discipline, with the  head of such Prosecution Department being made directly  responsible to the State Government in respect of conduct of  prosecutions  by  the  Assistant  Public  Prosecutors  of  his  department. Since the aforesaid notification dated 1-4-1974  issued by the Government of Maharashtra under Section 25  of the Code merely appoints the appellants and others, as  mentioned  in  Schedule  to  the  notification,  the  police  prosecutors  of  the  Police  Department  as  Assistant  Public  Prosecutors  without  freeing  such  Assistant  Public  Prosecutors from the administrative and disciplinary control  of the Police Department to which they belonged earlier, and  without  creating  a  separate  department  of  prosecution  for  them with the head of that department or departments being  made  directly  responsible  to  the  Government,  the  Government  of  Maharashtra  has  failed  to  discharge  its  statutory obligation impliedly imposed upon it in that regard  under sub-section (3) of Section 25 of the Code.”  

14  1995 Supp (3) SCC 37

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51. In  Sushma Suri6,  a  three-Judge  Bench  of  this  Court  

considered the meaning of the expression “advocate”  occurring in Article  

233 (2) of the Constitution and unamended Rule 49 of the BCI Rules. In  

paragraph 6 of the Report (Pg. 335) this Court held as under :

“6. If a person on being enrolled as an advocate ceases to  practise 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 practises before a  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.”

Then  in  paragraph  8  of  the  Report,  this  Court  observed  that  for  the  

purposes  of  the  1961  Act  and  the  BCI  Rules,  a  law  officer  (Public  

Prosecutor or Government Pleader) would continue to be an advocate. Not  

accepting the view of Delhi High Court in  Oma Shanker Sharma v.  Delhi   

Administration case (C.W.P. No. 1961 of 1987), this Court having regard to  

the object of recruitment under Article 233(2)  held in paragraph 9  (Pg.  

336):

“………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  Counsel  may  be  a  Public  Prosecutor  or  Government  Advocate  or  a  Government  Pleader.  He  too  

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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  the  Higher  Judicial  Service.  The  expression  “members of the Bar” in the relevant Rule would only mean  that 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 practise under the Act, he answers the description  of an advocate.”

With regard to unamended Rule 49 of the BCI Rules, this Court held as  

under :

“10. 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 Bar Council  concerned and shall cease to practise as long as he is in  such employment. However, an exception is made in such  cases  of  law  officers  of  the  Government  and  corporate  bodies despite his being a full-time salaried employee if such  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  

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he becomes a  mere  employee of  the  Government  or  the  body  corporate.  Therefore,  the  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.”

52. The authority most strongly relied on  for the appellants is the  

decision  of  this  Court  in  Sushma Suri6.   Their  contention   is  that  the  

decision in Sushma Suri6  is on all fours irrespective of amendment in Rule  

49 of the BCI Rules. On the other hand, the High Court has held – and the  

respondent (successful writ petitioner) supports the view of the High Court  

–  that  Rule  49  in  the  present  form  has  altered  the  legal  position  and  

Sushma Suri6  has no application.  We shall deal with this aspect a little  

later.  

53. In Satish Kumar Sharma7, the facts were these : the appellant  

was initially appointed as Assistant (Legal) by the Himachal Pradesh State  

Electricity Board (for short,  ‘Board’);  the said post was re-designated as  

Law Officer  Grade-II.  Later  on,  the appellant  was allowed to act  as an  

advocate of the Board and, accordingly, his application seeking enrollment  

was sent by the Board to the Bar Council of Himachal Pradesh. The Bar  

Council  of  Himachal  Pradesh  communicated  to  the  Board  that  the  

appellant did not meet the requirements of the Rules; he should be first  

designated as Law Officer and the order of appointment and the terms of  

such appointment be communicated. Consequent on the communication  

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received from the Bar Council of Himachal Pradesh, the Board designated  

the appellant as Law Officer. The Bar Council of Himachal Pradesh issued  

a certificate of enrolment dated 9.7.1984 to the appellant. Subsequently,  

the appellant was given ad hoc promotion to the post of Under Secretary,  

(Legal)-cum-Law Officer and then promoted as Under Secretary, (Legal)-

cum-Law Officer  on  officiating  basis.  Bar  Council  of  Himachal  Pradesh  

issued a notice to the appellant to show cause why his enrolment be not  

withdrawn. The appellant responded to the said notice. In the meanwhile,  

appellant was also promoted as Deputy Secretary (Legal)-cum-Law Officer  

on  ad hoc basis.  On 12.5.1996,  the  Bar  Council  of  Himachal  Pradesh  

passed  an  order  withdrawing  the  enrolment  of  the  appellant  with  

immediate effect  and directed him to surrender the enrolment certificate  

within 15 days therefrom. It was this resolution which was challenged by  

the appellant before the Himachal Pradesh High Court. However, he was  

unsuccessful before the High Court and he approached this Court.  This  

Court referred to Sections 24, 28 and 49 of the 1961 Act and Rule 49 of  

the  BCI  Rules.  This  Court  also  considered  the  terms  of  appointment,  

nature  of  duties  and service conditions  relating  to  the appellant  and in  

paragraph 17 (Pg. 377) of the Report noted as follows :

“17.  Looking  to  the  various  appointment/promotion  orders  issued  by  the  Board  to  the  appellant  and  regulation  of  business relating to Legal Cell of the Board aforementioned,  we can gather that:

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(1)  the appellant was a full-time salaried employee at  the  time of his enrolment as an advocate and continues to be so,  getting fixed scales of pay; (2) he is governed by the conditions of service applicable to  the  employees  of  the  Board  including  disciplinary  proceedings. When asked by us, the learned counsel for the  appellant also confirmed the same; (3)  he  joined  the  services  of  the  Board  as  a  temporary  Assistant (Legal) and continues to head the Legal Cell after  promotions, a wing in the Secretariat of the Board; (4)  his  duties were/are not  exclusively or mostly to  act  or  plead in courts; and (5) promotions were given from time to time in higher pay  scales as is done in case of other employees of the Board  on the basis of recommendation of Departmental Promotion  Committee.”

53.1. Then with regard to Rule 49 of the BCI Rules, this Court in  

paragraph 18 (pgs. 377-378) observed as under :

“18. On a proper and careful analysis, having regard to the  plain language and clear terms of Rule 49 extracted above, it  is clear that: (i) the main and opening paragraph of the rule prohibits or  bars an advocate from being a full-time salaried employee of  any  person,  Government,  firm,  corporation  or  concern  so  long as he continues to practice and an obligation is cast on  an advocate who takes up any such employment to intimate  the fact to the Bar Council concerned and he shall cease to  practice so long as he continues in such employment; (ii) para 2 of the rule is in the nature of an exception to the  general rule contained in main and opening paragraph of it.  The  bar  created  in  para  1  will  not  be  applicable  to  Law  Officers of the Central Government or a State or any public  corporation or body constituted by a statute, if they are given  entitlement under the rules of their State Bar Council. To put  it in other way, this provision is an enabling provision. If in  the  rules  of  any  State  Bar  Council,  a  provision  is  made  entitling  Law  Officers  of  the  Government  or  authorities  mentioned  above,  the  bar  contained  in  Rule  49  shall  not  apply  to  such  Law  Officers  despite  they  being  full-time  salaried employees;

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(iii)  not  every  Law  Officer  but  only  a  person  who  is  designated as Law Officer by the terms of his appointment  and who by the said terms is required to act and/or plead in  courts on behalf of his employer can avail the benefit of the  exception contained in para 2 of Rule 49.”

53.2. In  paragraph 19,  this  Court  noted  that  no rules  have been  

framed by the Bar Council of Himachal Pradesh in respect of Law Officer  

appointed as a full time salaried employee and if there are no rules in this  

regard then there is no entitlement for enrolment and the appellant’s case  

could not fit in the exception of Rule 49 and the bar contained in the first  

paragraph of Rule 49 was attracted. It also noted that the appellant was/is  

a full time salaried employee and his work was not mainly or exclusively to  

act or plead in the Court. The decision in Sushma Suri6 was  held to be of  

no help to the case of the appellant. In paragraph 23 (Pgs. 380-381), the  

Court observed that  the work being done by the appellant was different  

from  Prosecutors  and  Government  Pleaders  in  relation  to  acting  and  

pleading in court. This is what the Court said :

“23. We find no merit in the ground urged that the appellant  was  discriminated  against  the  prosecutors  and  the  government pleaders. The duties, nature of work and service  conditions of the appellant, details of which are already given  above, are substantially different from the duties and nature  of work of prosecutors and government pleaders particularly  in relation to acting and pleading in court. Thus the appellant  stood on a different footing. The High Court in paras 24-26  has dealt with this aspect of the case and rightly rejected the  argument based on the ground of discrimination.”

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54. In State of U.P. & Another v. Johri Mal15 , a three-Judge Bench  

of  this  Court  while  dealing  with  the  nature  of  the  office  of  the  District  

Government Counsel, held in paras 71, 72, 73 and 74 (pgs.744-745)  as  

under:  

“71.  The  District  Government  Counsel  appointed  for  conducting civil as also criminal cases hold offices of great  importance. They are not only officers of the court but also  the representatives of the State. The court reposes a great  deal of confidence in them. Their opinion in a matter carries  great  weight.  They  are  supposed  to  render  independent,  fearless and non-partisan views before the court irrespective  of the result of litigation which may ensue.

72. The Public Prosecutors have greater responsibility. They  are  required  to  perform  statutory  duties  independently  having regard to various provisions contained in the Code of  Criminal Procedure and in particular Section 320 thereof.

73.  The Public  Prosecutors  and the  Government  Counsel  play an important role in administration of justice. Efforts are  required  to  be  made  to  improve  the  management  of  prosecution in order to increase the certainty of conviction  and punishment for most serious offenders and repeaters.  The prosecutors should not be overburdened with too many  cases of widely varying degrees of seriousness with too few  assistants  and  inadequate  financial  resources.  The  prosecutors  are  required  to  play  a  significant  role  in  the  administration  of  justice  by  prosecuting  only  those  who  should be prosecuted and releasing or directing the use of  non-punitive  methods  of  treatment  of  those  whose  cases  would best be processed.

74.  The District  Government Counsel  represent  the State.  They,  thus,  represent  the  interest  of  the  general  public  before  a  court  of  law.  The  Public  Prosecutors  while  presenting  the  prosecution  case  have  a  duty  to  see  that  innocent  persons  may  not  be  convicted  as  well  as  an  accused  guilty  of  commission  of  crime  does  not  go  

15 (2004) 4 SCC 714

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unpunished.  Maintenance  of  law  and  order  in  the  society  and, thus, to some extent maintenance of rule of law which  is the basic fibre for upholding the rule of democracy lies in  their  hands.  The  Government  Counsel,  thus,  must  have  character,  competence,  sufficient  experience  as  also  standing at the Bar. The need for employing meritorious and  competent persons to keep the standard of the high offices  cannot be minimised. The holders of the post have a public  duty to perform. Public element is, thus, involved therein.”

55. In Mahesh Chandra Gupta v. Union of India and Others16, with  

reference to the provisions contained in the Legal Practitioners Act, 1879,  

the 1926 Act and the 1961 Act,  this Court  observed as follows:

“66. Thus, it becomes clear from the legal history of the 1879  Act, the 1926 Act and the 1961 Act that they all deal with a  person's right to practise or entitlement to practise. The 1961  Act only seeks to create a common Bar consisting of one  class  of  members,  namely,  advocates.  Therefore,  in  our  view, the said expression “an advocate of a High Court” as  understood, both, pre and post 1961, referred to person(s)  right to practise. Therefore, actual practise cannot be read  into the qualification provision, namely, Article 217(2)(b). The  legal implication of the 1961 Act is that any person whose  name  is  enrolled  on  the  State  Bar  Council  would  be  regarded as “an advocate of the High Court”. The substance  of Article 217(2)(b) is that it prescribes an eligibility criteria  based on “right to practise” and not actual practice.”

56. The Karnataka High Court in Mallaraddi H. Itagi and Others v.   

The High Court  of  Karnataka,  Bangalore  and Another17 was,  inter  alia,  

concerned with the question whether the petitioners, who were working as  

either Assistant Public Prosecutors or Senior Assistant Public Prosecutors  

16  (2009) 8 SCC 273 17  2002 (4) Karnataka Law Journal 76

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or Public Prosecutors, were eligible to be considered for appointment as  

District  Judges  under  Article  233(2)  of  the  Constitution  and  Rule  2  of  

Karnataka  Judicial  Services  (Recruitment)  Rules,  1983  (for  short,  

‘Karnataka  Recruitment  Rules’).  The  Division  Bench  of  the  High  Court  

considered  the  relevant  provisions  and  the  decisions  of  this  Court  in  

Sushma Suri6 and Satya Narain Singh5. The High Court held that  having  

regard  to  the  provisions  in  the  Karnataka  Recruitment  Rules,  the  

petitioners were civil servants in the employment of the State Government  

and could not be treated as practicing advocates from the date they were  

appointed to the post of Assistant Public Prosecutors. The High Court took  

into consideration Rule 49 of the BCI Rules and held as under (Pg. 86-88):

“The petitioners 1 to 9 came to be appointed as Assistant  Public  Prosecutors/Senior  Assistant  Public  Prosecutors/Public Prosecutors in terms of the Recruitment  Rules framed by the State Government. Therefore, in terms  of the main provision contained in Rule 49 of the Bar Council  of  India  Rules,  the  petitioners  on  their  appointment  as  Assistant  Public  Prosecutors  ceased  to  be  practising  Advocates. Further, as noticed by us earlier, when once the  petitioners had surrendered their Certificate of Practice and  suspended  their  practice  in  terms  of  Rule  5  of  the  Bar  Council of India Rules, it is not possible to take the view that  they  still  continue  to  be  practising  Advocates.  The  rules  which prescribe the qualification for appointment to the post  of  District  Judges  by  direct  recruitment  provides  that  an  applicant  must  be  practising  on  the  last  date  fixed  for  submission of application, as an Advocate and must have so  practised for  not less than 7 years as on such date.  The  case of Sushma Suri, supra, does not deal with the situation  where the Law Officers had surrendered the Certificate of  Practice and suspended their practice. The facts of that case  indicates that the Hon'ble Supreme Court proceeded on the  

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basis that the exception provided to Rule 49 of the Rules  applies to the Law Officers in that case inasmuch as the Law  Officers in those cases were designated by terms of their  appointment as Law Officers for the purpose of appearing  before the Courts on behalf  of their employers. Therefore,  facts of those cases are different from the facts of the case  of petitioners 1 to 9. The rule similar to the one before us  which  provides  that  an  Advocate  must  be  a  practising  Advocate on the date of the submission of the application did  not fall for consideration before the Hon'ble Supreme Court.  The  Delhi  Higher  Judicial  Services  Rules,  1970  did  not  provide that an Advocate should be a practising Advocate on  the  date  of  submission  of  his  application.  Under  these  circumstances,  in  our  considered  view,  the  observation  made by the Hon'ble Supreme Court in the case of Sushma  Suri, supra, at paragraph 8 of the judgment which is strongly  relied  upon  by  the  learned  Counsel  for  the  petitioners  wherein it is stated that "for purposes of the 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  the  higher  judicial  service should be a person who regularly, practices before  the  Court  or  Tribunal  appearing  for  a  client"  has  no  application to the facts of the present case. As noticed by us,  the qualification prescribed for Assistant Public Prosecutor is  three  years  of  practice  as  an  Advocate  on  the  date  of  submission  of  application.  The  qualification  prescribed  for  recruitment to the post of Munsiff,  i.e.,  Civil  Judge (Junior  Division)  is  that  an  applicant,  on  the  last  date  fixed  for  submission  of  application,  must  be  a  practising  Advocate  and must have practiced for not less than four years on the  date of application; or who is working as an Assistant Public  Prosecutor/Senior Assistant Public Prosecutor or as a Public  Prosecutor  in  the  Department  of  Prosecutions  and  must  have so worked for not less than 4 years as on the date of  application.  Therefore,  the  Assistant  Public  Prosecutors/Senior  Assistant  Public  Prosecutor/Assistant  Public Prosecutor are made eligible for appointment only to  the post of Munsiffs Civil Judge (Junior Division) under the  Recruitment Rules. But, they are not made eligible under the  Rules for appointment as District Judges. Therefore, when  the Rule making Authority itself has not made the Assistant  Public Prosecutor/Senior Assistant Public Prosecutor/Public  Prosecutor as eligible for appointment to the post of District  

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Judges,  it  is  not  permissible  to  treat  the  Assistant  Public  Prosecutor/Senior  Assistant  Public  Prosecutor/Public  Prosecutor as practising Advocates by judicial interpretation  and by giving extended meaning to make them eligible for  appointment to the post of District Judges.”

With reference to the  decision of this Court in  Satya Narain Singh5 , the  

Karnataka High  Court held as under (Pg. 88-89) :

“The Hon'ble  Supreme Court  in  the case of  Satya Narain  Singh v.  High Court  of  Judicature  at  Allahabad and Ors.,  1985  (1)  SCC  225,  while  interpreting  Sub-clause  (2)  of  Article 233 of the Constitution of India has taken the view  that "a person not already in service of Union or of the State"  shall mean only officers in judicial service and the Judicial  Officers  who  are  already  in  service  are  not  eligible  for  appointment  in  respect  of  the  post  reserved  for  direct  recruitment  under  Sub-clause  (2)  of  Article  233  of  the  Constitution of India. Therefore, the Judicial Officers who are  in the State services are ineligible for appointment in respect  of direct recruitment vacancies. However, if the argument of  the learned Counsel for petitioners is accepted as correct,  the Assistant Public Prosecutor and Senior Assistant Public  Prosecutor  who  are  only  made  eligible  under  the  Recruitment Rules to the post of Munsiffs which is the lowest  cadre  in  the  District  Judiciary  would  be  eligible  for  appointment to the post of District Judges in respect of the  posts reserved for direct recruitment vacancies. In our view,  the  acceptance  of  such  a  position  would  lead  to  discrimination between the officers of the State who are in  judicial  services  on  the  one  hand  and  Assistant  Public  Prosecutors, Senior Assistant Public Prosecutors and Public  Prosecutors on the other. While considering the contention  of the learned Counsel for the petitioners that the Assistant  Public Prosecutor/Senior Assistant Public Prosecutor/Public  Prosecutors should be treated as practising Advocates, this  Court  cannot  ignore  the  consequence  of  resultant  incongruous situation, if such an argument is accepted. We  are also unable to accede to the submission of the learned  Counsel for the petitioners that so long as the names of the  petitioners 1 to 9 are not removed from the Rolls of State Bar  Council, the said petitioners would be practising Advocates.  In our view, there is no merit in this submission. No doubt,  

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Section 2(a) of the Advocates Act (hereinafter referred to as  the "Act") provides that "an 'Advocate' means an Advocate  entered in any roll under the provisions of Advocates Act".  That does not mean the Advocate who has surrendered the  Certificate of Practice to the State Bar Council and who has  suspended  his  practice  also  can  be  treated  either  as  an  Advocate or as a practising Advocate. May be that once a  Law graduate enrolls himself as an Advocate, his name finds  a place in the Rolls of the State Bar Council till it is removed  from the Rolls of the State Bar Council in terms of Clause (d)  of Sub-section (3) of Section 35 of the Act. But, that does not  mean a person who has suspended his practice on securing  a full time appointment can still be considered as a practising  Advocate.  This  conclusion  of  ours  gets  support  from  the  Sub-section  (4)  of  Section  35  of  the  Act  wherein  it  is  provided  that  where  an  Advocate  is  suspended  from  practice, during the period of suspension he is debarred from  practising in any Court or before any authority or person in  India. Therefore, if the object of surrendering Certificate of  Practice and suspending the practice is to give up the right  to practice before the Court; the petitioners 1 to 9 who were  required  to  surrender  the  Certificate  of  Practice  and  who  have so suspended their  practice,  cannot  in  our  view, be  held either as Advocates or as practising Advocates. In our  view,  during  the period  of  suspension of  practice,  such a  person ceases to be an Advocate; and continuance of his  name on the Rolls of Bar Council is of no consequence so  far as his right to practice is concerned and such a person  cannot designate himself as an Advocate. Therefore, we are  of the view that the petitioners 1 to 9 not being practising  Advocates on the date of submission of their applications,  they are not  eligible  for  appointment  as District  Judges in  terms  of  the  qualification  prescribed.  Therefore,  the  Selection Committee  has,  in  our  view,  rightly  rejected the  claim of  the petitioners 1  to  9 for  appointment  as District  Judges and they were rightly not called for interview. The  petitioners cannot have any grievance on that account.”

57. The judgment of the Karnataka High Court in  Mallaraddi H.  

Itagi17  was challenged before this Court. This Court dismissed the appeals  

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on 18.05.200918  and, upholding the judgment of the High Court, observed  

as follows:   

“7.  On that basis the Court came to the conclusion that  the appellant therein was not liable to be considered as he  was   holding  a  regular  post.   In  paragraph  19  it  was  observed:

“These  orders  clearly  show  that  the  appellant  was  required to work in the Legal Cell of the Secretariat of the  Board;  was given different pay scales; rules of seniority  were  applicable;  promotions were  given to  him on the  basis  of  the  recommendations  of  the  Departmental  Promotion  Committee;  was  amenable  to  disciplinary  proceedings, etc.

Further looking to the nature of duties of Legal Cell as  stated  in  the  regulation  of  business  of  the  Board  extracted above, the appellant being a full-time salaried  employee  had/has  to  attend  to  so  many  duties  which  appear to be substantial and predominant. In short and  substance we find  that  the  appellant  was/is  a  full-time  salaried  employee  and  his  work  was  not  mainly  or  exclusively to act or plead in court.  

Further, there may be various challenges in courts of  law assailing or relating to the decisions/actions taken by  the  appellant  himself  such  as  challenge  to  issue  of  statutory  regulation,  notification,  the  institution/  withdrawal of any prosecution or other legal/quasi-legal  proceedings etc.   In a given situation the appellant may  be amenable to disciplinary jurisdiction of his employer  and/or to the disciplinary jurisdiction of the Bar Council.  There could be conflict of duties and interest.  In such an  event,  the  appellant  would  be  in  an  embarrassing  position to plead and conduct a case in a court of law.  

Moreover, mere occasional appearances in some courts  on behalf of  the Board even if  they be, in our opinion,  could not bring the appellant with  the meaning of “Law  Officer” in terms of para 3 of Rule 49.”

18 Civil Appeal Nos. 947-956 of 2003, Mallaraddi H. Itagi and Ors. v. High Court of Karnataka and Ors.

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and  has also taken a view  that in a situation like this the  decision in Sushma Suri case is not applicable.    We have  no reason to take any different view, as had already been  taken by this  court,  as the situation is  not  different.   It  is  already considered before the High Court that the appellants  were holding a regular post  they were having the regular  pay scale, they were  considered for promotion, they were  employed by the State Government Rules and therefore they  were  actually  the  Government  servants  when  they  made  applications for the posts of District Judges.”

58. The decision of the Karnataka High Court  in   Mallaraddi H.  

Itagi17   and the judgment of this Court18   in the appeals from that decision  

have been heavily relied on by the respondent – successful writ petitioner.  

59. Few decisions rendered by some of the High Courts on the  

point may also be noticed here.   In Sudhakar Govindrao Deshpande11, the  

issue that fell for consideration before the Bombay High Court was whether  

the petitioner therein who was serving as Deputy Registrar at the Nagpur  

Bench of the Bombay High Court, was eligible for  appointment to the post  

of the District Judge. The advertisement that was issued by the High Court  

inviting  applications  for  five  posts  of  District  Judges,  inter  alia,  stated,  

‘candidate must ordinarily be an advocate or pleader who has practised in  

the High Court,  Bombay or  Court  subordinate  thereto  for  not  less than  

seven years on the 1st October, 1980’.  The Single Judge of the Bombay  

High  Court  considered  Articles  233,  234  and  309  of  the  Constitution,  

relevant  Recruitment  Rules  and   noted  the  judgments  of  this  Court  in  

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Chandra  Mohan4,  Satya  Narain  Singh5  and  Rameshwar  Dayal9.  It  was  

observed as follows:  

“ . . . . . . . . the phrase "has been an Advocate or a pleader"  must be interpreted as a person who has been immediately  prior to his appointment  a member of the Bar, that is to say  either  an  Advocate  or  a  pleader.  In  fact,  in  the  above  judgment, the Supreme Court has repeatedly referred to the  second  group  of  persons  eligible  for  appointment  under  Article  233  (2)  as  "members  of  the  Bar".  Article  233(2)  therefore, when it refers to a person who has been for not  less than seven years an Advocate or pleader refers to a  member  of  the  Bar  who is  of  not  less  than seven years'  standing.”

60. In Smt. Jyoti Gupta v. Registrar General, High Court of M.P.,   

Jabalpur and Another19,  Madhya Pradesh High Court was concerned with  

the question as to whether the Assistant Public Prosecutors were eligible  

to  apply  for  appointment  to  the  post  of  District  Judges.  The  Madhya  

Pradesh High Court held as under :

“.  .  .  .  .  .  A careful  reading  of  the  note  provided  in  the  exception states that nothing in Rule 49 of the Bar Council of  India  Rules  shall  apply  to  a  Law  Officer  of  the  Central  Government, State Government or a body corporate who is  entitled  to  be  enrolled  under  the  rules  of  the  State  Bar  Council under Section 28(2)(d) read with Section 24(1)(e) of  the  Advocates  Act,  1961  despite  his  being  a  full-time  salaried  employee.  Hence,  the  exception  to  Rule  49  has  been  provided  because  of  the  provisions  in  the  Rules  of  State  Bar  Council  made under  Section 28(2)(d)  read with  Section  24(1)(e)  of  the  Advocates  Act,  1961  for  a  Law  Officer of the Central Government or the State Government  or a body corporate to be admitted into the roll of the State  Bar Council if he is required by the terms of his appointment  to act and/or plead in Courts on behalf of his employer. In  other  words,  if  the  rules  made  by  the  State  Bar  Council  

19 2008 (2) MPLJ 486

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under  Section  28(2)(d)  read  with  Section  24(1)(e)  of  the  Advocates Act, 1961 provide for admission as an Advocate,  enrolment in the State Bar Council as an Advocate or a Law  Officer of the Central Government or the State Government  or a body corporate, who, by the terms of his employment, is  required  to  act  and/or  plead  in  Courts  on  behalf  of  his  employer, he can be admitted as an Advocate and enrolled  in  the  State  Bar  Council  by  virtue  of  the  provisions  of  Sections 24(1)(e) and 28(2)(d) of the Advocates Act, 1961  and the rules made thereunder by the State Bar Council and  he does not cease to be an Advocate on his becoming such  Law Officer of the Central Government, State Government or  a body corporate. As we have seen, the State Bar Council of  M.P. has provided under Proviso(i) of Rule 143 that a Law  Officer of the Central Government or a Government of State  or a public corporation or a body constituted by a statute,  who  by  the  terms  of  his  appointment,  is  required  to  act  and/or plead in Courts on behalf of his employer, is qualified  to be admitted as an Advocate even though he may be in full  or  part-time  service  or  employment  of  such  Central  Government,  State  Government,  public  corporation  or  a  body  corporate.  The  position  of  law,  therefore,  has  not  materially altered after the deletion of the note contained in  the  exception  under  Rule  49  of  the  Bar  Council  of  India  Rules by the resolution of  the Bar  council  of  India,  dated  22nd June, 2001. ….. ….. ….. In the result, we hold that if a person has been enrolled as  an  Advocate  under  the  Advocates  Act,  1961  and  has  thereafter  been  appointed  as  Public  Prosecutor/Assistant  Public Prosecutor or Assistant District Public Prosecutor and  by the terms of his appointment continues to conduct cases  on  behalf  of  the  State  Government  before  the  Criminal  Courts,  he  does not  cease  to  be  an Advocate  within  the  meaning of Article 233(2) of the Constitution and Rule 7(1) (c)  of  M.P.  Uchchatar  Nyayik  Sewa  (Bharti  Tatha  Sewa  Shartein) Niyam, 1994 for the purpose of recruitment to the  post  of  District  Judge  (Entry  Level)  in  the  M.P.  Higher  Judicial Service.”

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61. In  K.  Appadurai v.  The  Secretary  to  Government  of  Tamil   

Nadu and Another20,  one of the questions under consideration before the  

Madras High Court was  whether  for appointment to  the post of District  

Judge (Entry Level),   the applications could have been invited from the  

Assistant Public Prosecutor (Grade I & II). The Division Bench of that Court  

referred to Article 233 of the Constitution, Rule 49 of the BCI Rules and the  

decisions of this Court in Satya Narain Singh5,  Chandra Mohan4,  Sushma  

Suri6, Johri Mal15 and Satish Kumar Sharma7.  The Division Bench held as  

under:

“22.  In  the light  of  the  ratio  laid  down by the  Supreme  Court in the decisions quoted hereinbefore, it can safely  be  concluded that  the  nature  of  duties  of  the  Assistant  Public Prosecutors is to act and plead in Courts of Law on  behalf  of  the  State  as  Advocates.  Even after  becoming  Assistant Public Prosecutors they continue to practice as  advocates  and  plead  the  cases  on  behalf  of  the  Government  and  their  names  remained  in  the  roll  of  advocates  maintained  by  the  Bar  Council.  As  Public  Prosecutors  they  acquired  much  experience  in  dealing  criminal cases.

23.  It  was argued on behalf  of  the petitioners that  the  note appended to  Rule 49 of  the Bar  Council  of  India  Rules having been deleted by a resolution dated 22nd  June, 2001 of the Bar Council of India, the ratio decided  by the Supreme Court in Sushma Suri Case (supra) will  not apply, and therefore, an advocate who is employed  as  a  full  time  salaried  employee  of  the  government,  ceases  to  practice  as  an  advocate  so  long  as  he  continues in such employment. The submission made by  the counsel has no substance.

20 2010-4-L.W.454

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24. As noticed above, Rule 49 of the Bar Council of India  Rules  provides  an  exception  where  in  case  of  Law  Officers of the government and corporate bodies, despite  they being employed by the government as Law Officers,  they cannot cease to be advocates so long as they are  required to plead in the courts.  For example, Assistant  Public Prosecutors so appointed by the government on  payment  of  salary  their  only  nature  of  work  is  to  act,  plead and defend on behalf of the State as an advocate.  Hence,  an  advocate  employed  by  the  government  as  Law Officer  namely,  an Assistant  Public Prosecutor on  terms of  payment  of  salary  would not  cease to  be an  advocate in terms of Rule 49 of the Bar Council of India  Rules for the purpose of appointment, as such advocate  is required to act or plead in courts on behalf of the State.  If,  in terms of the appointment, an advocate is made a  Law Officer on payment of salary to discharge his duties  at the Secretariat and handle the legal files, he ceased to  be an advocate. In our considered opinion, therefore, the  deletion of the note appended to under Rule 49 of the  Bar Council of India Rules will not in any way affect the  legal proposition of law. We are also of the view that in  the light  of  the relevant  clauses of  the Advocates Act,  1961 it will not debar the Assistant Public Prosecutors to  continue and plead in courts as an advocate.”

62. In   Biju Babu10 , the question before the Kerala High Court  

was whether the appellant, who was a Public Prosecutor appointed by the  

Central  Government  to  conduct  cases  for  the  C.B.I.,  was  eligible  for  

appointment  to  the  post  of  District  Judge  in  the  Kerala  State  Higher  

Judicial  Service  by  direct  recruitment.   The  High  Court  answered  the  

question in the negative mainly relying on amended Rule 49 of the BCI  

Rules and the legal position stated by this Court in Satish Kumar Sharma7.   

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63. Two more  judgments  of  this  Court  may  be  quickly  noticed  

here.   In  State of  U.P. v.  Ramesh Chandra Sharma and others21,  this  

Court  stated that the appointment  of  any legal  practitioner  as a District  

Government  Counsel   is  only  professional  engagement.   A  two-Judge  

Bench of this Court in Samarendra Das, Advocate  v. State of West Bengal   

and  others22 was  concerned  with  the  question  whether  the  post  of  

Assistant  Public  Prosecutor  was  a  civil  post  under  the  State  of  West  

Bengal in terms of Section 15 of the Administrative Tribunals  Act 1985.  

While answering the above question in the affirmative, this Court held that  

the  post  of  Assistant  Public  Prosecutor  was  a  civil  post.   The  Court  

negated the argument that the Assistant Public Prosecutor was an officer  

of the Court of Judicial Magistrate.  

64. After the arguments were concluded in these matters and the  

judgment was reserved,   Respondent No. 1 (original writ petitioner) has  

circulated  a judgment  of  the Bombay High Court  in Sunanda Bhimrao  

Chaware & Ors. v. The High Court of Judicature at Bombay, delivered on  

17.10.2012  by  the  Full  Bench  of  that  Court.   We  are  not  inclined  to  

consider  this  judgment  for  two  reasons.   One,  the  appellants  had  no  

occasion to respond to or explain that judgment.  Secondly, and equally  

important, the aggrieved parties by that judgment, who are not before us,  

21 (1995) 6 SCC 527 22 (2004) 2 SCC 274

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may be advised to challenge the judgment.  We do not intend to foreclose  

the rights of the parties one way or the other.  

65. Section  24  Cr.P.C.  provides  that  for  every  High  Court  the  

Central  Government  or  the  State  Government  shall  appoint  a  Public  

Prosecutor. The Central Government or the State Government may also  

appoint one or more Additional Public Prosecutor for conducting in such  

court, any prosecution, appeal or other proceedings on their behalf. The  

Central Government may appoint one or more Public Prosecutors for the  

purpose of conducting any case or class of cases in any district or local  

area. Insofar as State Government is concerned it provides that for every  

district it shall appoint a Public Prosecutor and may also appoint one or  

more Additional Public Prosecutors for the district. There are two modes of  

appointment  of  the  Public  Prosecutors,  one,  preparation  of  a  panel  of  

names  of  persons,  who  in  the  opinion  of  the  District  Magistrate   after  

consultation with the Sessions Judge, are  fit  to be appointed as Public  

Prosecutors or Additional Public Prosecutors for the district.   The other,  

appointment of Public Prosecutor or an Additional Public Prosecutor from  

amongst the persons in a State where exists regular cadre of prosecuting  

officers. A person is  eligible to be appointed as Public Prosecutor only if  

he has been in practise as an advocate for not less than seven years.  

Special  Public Prosecutor  may also be appointed by the Central  or  the  

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State Government for the purpose of any case or class of cases but he has  

to be a person who has been in practise as an advocate for not less than  

10 years.    

66. Public  Prosecutor  has  a  very  important  role  to  play  in  the  

administration of justice and, particularly, in criminal justice system. Way  

back on April 15, 1935 in Harry Berger v. United States of America23 , Mr.  

Justice Sutherland,  who delivered  the opinion of  the Supreme Court  of  

United  States,  said  about  the  United  States  Attorney  that  he  is  the  

representative  not  of  an  ordinary  party  to  a  controversy,  but  of  a  

sovereignty whose obligation to govern impartially is as compelling as its  

obligation  to  govern  at  all,  and  whose  interest,  therefore,  in  a  criminal  

prosecution is not that it shall win a case, but that justice shall be done.  

The twofold aim of United States Attorney is that guilt shall not escape or  

innocence suffer.  It is as much his duty to refrain from improper methods  

calculated to produce wrongful conviction as it is to use every legitimate  

means to bring about a just one.   

67. The  Eighth  United  Nations  Congress  on  the  Prevention  of  

Crime and the Treatment of Offenders, adopted guidelines on the role of  

Prosecutors in 1990. Inter-alia, it states that Prosecutors shall perform their  

duties fairly, consistently and expeditiously and respect and protect human  

23  295 U.S. 78

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dignity  and uphold  human rights.   He shall  take proper  account  of  the  

position of the suspect and the victim and pay attention to all   relevant  

circumstances,  irrespective  of  whether  they  are  to  the  advantage  or  

disadvantage of the suspect.  

68. As a follow up action to the above guidelines on the role of  

Prosecutors,  the  International  Association  of  Prosecutors  adopted  

Standards of Professional  Responsibility  and Statement of the Essential  

Duties  and  Rights  of  Prosecutors  which,  inter-alia,  provides  that  

Prosecutors  shall  strive  to  be,  and  to  be  seen  to  be,  consistent,  

independent and impartial; Prosecutors shall preserve the requirements of  

a fair trial and safeguard the rights of the accused in co-operation with the  

Court.  

69. European  Guidelines  on  Ethics  and  Conduct  for  Public  

Prosecutors  [The  Budapest  Guidelines]  adopted  in  the  Conference  of  

Prosecutors General of Europe on 31st May, 2005 are on the same lines as  

above. Under the head “professional conduct in the framework of criminal  

proceedings”.   These  guidelines  state  that  when  acting  within  the  

framework of criminal proceedings, Public Prosecutor should at all times  

carry  out  their  functions  fairly,  impartially,  objectively  and,  within  the  

framework  of  the  provisions  laid  down  by  law,  independently;  seek  to  

ensure  that  the  criminal  justice  system  operates  as  expeditiously  as  

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possible, being consistent with the interests of justice; respect the principle  

of  the  presumption  of  innocence  and  have  regard  to  all  relevant  

circumstances of a case including those affecting the suspect irrespective  

of whether they are to the latter’s advantage or disadvantage.

70. In India, role of Public Prosecutor is no different.  He has at all  

times to ensure that an accused is tried fairly.   He should consider the  

views, legitimate interests and possible concern of witnesses and victims.  

He is supposed to refuse to use evidence reasonably believed to have  

been obtained through recourse  to  unlawful  methods.   His  acts  should  

always  serve  and  protect  the  public  interest.   The  State  being  a  

Prosecutor, the Public Prosecutor carries a primary position.  He is not a  

mouthpiece of the investigating agency.  In Chapter II of the BCI Rules, it  

is stated that an advocate appearing for the prosecution of a criminal trial  

shall so conduct the prosecution that it does not lead to conviction of the  

innocent; he should scrupulously avoid suppression of material capable of  

establishing the innocence of the accused.

71. A two Judge Bench of this Court in Mukul Dalal2, while dealing  

with a question about the justifiability of the appointment by the State of  

Special  Public  Prosecutors  and  Assistant  Public  Prosecutors  under  

Sections  24  and  25  Cr.P.C.   respectively,  observed  that  in  criminal  

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jurisprudence the State was a prosecutor and that is why primary position  

is assigned to the Public Prosecutor.

72. In  Sidhartha Vashisht alias Manu Sharma v.  State (NCT of   

Delhi)24, the Court considered role of Public Prosecutor vis-à-vis his duty of  

disclosure. The Court noted earlier decisions of this Court in  Shiv Kumar  

v. Hukam Chand and Another25 and Hitendra Vishnu Thakur and Others v.  

State  of  Maharashtra  and  others26  and  in  paragraphs  185  and  186  

(Pgs. 73-74) of the Report stated as under :  

“185. A Public Prosecutor is appointed under Section 24 of the  Code  of  Criminal  Procedure.  Thus,  Public  Prosecutor  is  a  statutory office of high regard. This Court has observed the role  of a Prosecutor in  Shiv Kumar v.  Hukam Chand [(1999) 7 SCC  467] as follows: (SCC p. 472, para 13)

“13. From the scheme of the Code the legislative intention  is  manifestly  clear  that  prosecution  in  a  Sessions  Court  cannot  be  conducted  by  anyone  other  than  the  Public  Prosecutor.  The  legislature  reminds  the  State  that  the  policy  must  strictly  conform to  fairness  in  the  trial  of  an  accused in a Sessions Court.  A Public Prosecutor is not  expected to show a thirst to reach the case in the conviction  of  the accused somehow or the other  irrespective of  the  true facts involved in the case. The expected attitude of the  Public  Prosecutor  while  conducting  prosecution  must  be  couched  in  fairness  not  only  to  the  court  and  to  the  investigating  agencies  but  to  the  accused  as  well.  If  an  accused is entitled to any legitimate benefit during trial the  Public  Prosecutor  should  not  scuttle/conceal  it.  On  the  contrary, it is the duty of the Public Prosecutor to winch it to  the force and make it available to the accused. Even if the  defence counsel overlooked it,  the Public Prosecutor has  

24  (2010) 6 SCC 1 25  (1999) 7 SCC 467 26  (1994) 4 SCC 602

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the added responsibility to bring it to the notice of the court  if it comes to his knowledge. A private counsel, if allowed a  free hand to conduct prosecution would focus on bringing  the case to conviction even if it is not a fit case to be so  convicted.  That  is  the  reason  why  Parliament  applied  a  bridle  on  him  and  subjected  his  role  strictly  to  the  instructions given by the Public Prosecutor.

186.  This  Court  has  also  held  that  the  Prosecutor  does  not  represent the investigating agencies, but the State. This Court in  Hitendra Vishnu Thakur v.  State of Maharashtra [(1994) 4 SCC  602] held: (SCC pp. 630-31, para 23)

“23.  … A Public  Prosecutor  is  an  important  officer  of  the  State Government and is appointed by the State under the  Criminal  Procedure  Code.  He  is  not  a  part  of  the  investigating  agency.  He  is  an  independent  statutory  authority. The public prosecutor is expected to independently  apply  his  mind to  the  request  of  the investigating agency  before submitting a report to the court for extension of time  with a view to enable the investigating agency to complete  the  investigation.  He  is  not  merely  a  post  office  or  a  forwarding  agency.  A  Public  Prosecutor  may  or  may  not  agree with the reasons given by the investigating officer for  seeking extension of time and may find that the investigation  had not progressed in the proper manner or that there has  been  unnecessary,  deliberate  or  avoidable  delay  in  completing the investigation.”

   Then in paragraph 187 (Pg. 74) the Court stated as follows :

“187. Therefore, a Public Prosecutor has wider set of duties than to  merely ensure that the accused is punished, the duties of ensuring  fair play in the proceedings, all relevant facts are brought before the  court in order for the determination of truth and justice for all the  parties including the victims. It must be noted that these duties do  not allow the Prosecutor to be lax in any of his duties as against the  accused.”

73. In a recent decision in Centre for Public Interest Litigation and   

others v. Union of India and others27, the question before this Court was in  

27  (2012) 3 SCC 117

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respect of the appointment of a Special Public Prosecutor to conduct the  

prosecution on behalf of CBI and ED in 2G Spectrum case.  While dealing  

with the above question, the Court considered Section 2(u) and Section 24  

Cr.P.C. and Section 46 of the Prevention of Money-Laundering Act, 2002  

and  few earlier decisions of this Court in  Manu Sharma24,  Sheonandan  

Paswan  v.  State  of  Bihar  and  Others28 and   Johri  Mal15  and  it  was  

observed  that  in  an  appointment  of  Public  Prosecutor,  the  principle  of  

master-servant does not apply; such an appointment is not an appointment  

to a civil post.

74. The  mode  of  appointment  of  Public  Prosecutor  (including  

Additional Public Prosecutor and Special Public Prosecutor) under Section  

24 Cr.P.C. and the mode of appointment of Assistant Public Prosecutor  

under Section 25 Cr.P.C. significantly differ. There is qualitative difference  

in  the  role  and  position  of  Public  Prosecutor  and  Assistant  Public  

Prosecutor. As a matter of law, Assistant Public Prosecutor is not included  

in  the  definition  of  ‘Public  Prosecutor’  under  Section  2(u)  Cr.P.C.  In  

Samarendra  Das22,  this  Court  held  that  the  post  of  Assistant  Public  

Prosecutor was a civil post. This position was accepted by a three-Judge  

Bench  of  this  Court  in  Johri  Mal15.  It  was  stated  in  Johri  Mal15,  “….a  

distinction  is  to  be  borne  in  mind  between  appointment  of  a  Public  

28 (1987) 1 SCC 288

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Prosecutor or Additional Public Prosecutor on the one hand and Assistant  

Public Prosecutor on the other. So far as Assistant Public Prosecutors are  

concerned,  they  are  employees  of  the  State……”  As  regards  ‘Public  

Prosecutor’, this Court has consistently held that though Public Prosecutor  

is  a  holder  of  ‘public  office’  and  he  holds  a  ‘post’  yet  he  is  not  in  

government  service  as  the  term  is  usually  understood.  Despite  these  

differences, for the purposes of Article 233(2) there is not much difference  

in  a Public  Prosecutor  and an Assistant  Public  Prosecutor  and both of  

them are covered by the expression ‘advocate’. It is so for more than one  

reason.  In  the  first  place,  a  Public  Prosecutor  under  Section  24  is  

appointed by the State Government or the Central Government for conduct  

of prosecution, appeal or other proceeding on its behalf in the High Court  

or for a district and Assistant Public Prosecutor is appointed under Section  

25  by  the  State  Government  or  the  Central  Government  to  conduct  

prosecution on its behalf in the courts of Magistrates.  So the main function  

of the Public Prosecutor as well as Assistant Public Prosecutor is to act  

and/or plead on behalf of the Government in a court; both of them conduct  

cases on behalf of the government.   Secondly and     remarkably,   for the  

purposes of  counting experience as an advocate as prescribed in sub-

sections 24(7) and 24(8), the period, during which a person has rendered  

service as a Public Prosecutor or as Assistant Public Prosecutor, is treated  

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as being in practice as an advocate under Section 24(9) Cr.P.C. In other  

words,  the rendering  of  service as a Public  Prosecutor  or  as  Assistant  

Public Prosecutor is deemed to be practice as an advocate.   

75. The  three  appellants  namely,  Deepak  Aggarwal,  Chandra  

Shekhar  and  Desh  Raj  Chalia,  at  the  time  of  their  application,  were  

admittedly  working  as  Assistant  District  Attorney.  They  were  appointed  

under the Haryana State Prosecution Legal Service (Group C) Rules, 1979  

(for short, ‘1979 Rules’). The relevant Rules read as under :

“2. Definitions.—In these rules, unless the context otherwise  requires:- 2(a) xxx xxx xxx 2(b)    “direct  recruitment”  means  an  appointment  made  otherwise  than  by  promotion  or  by  transfer  of  an  official  already in  the  service  of  the  Government  of  India  or  any  State Government; xxx xxx xxx 6.  Appointing Authority.—Appointment to the posts in the  service shall be made by the Director. xxx xxx xxx 9. Method  of  Recruitment.-(1)  Recruitment  to  the  Service shall be made:-

(i) by direct recruitment; or (ii) by promotion; or

xxx xxx xxx 11. Seniority  of  Members  of  the  service.-The  seniority  inter se of members of the Service shall be determined by  the  length  of  their  continuous  service  on  any  post  in  the  Service.

Provided that in the case of members appointed by  direct  recruitment,  the  order  of  merit  determined  by  the  Commission  or  any  other  recruiting  authority  shall  not  be  disturbed in fixing the seniority:

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Provided  further  that  in  the  case  of  two  or  more  members appointed on the same date, their seniority shall  be determined as follows:

(a) a member appointed by direct recruitment shall  be  senior  to  a  member  appointed  by  promotion  or  by  transfer; xxx xxx xxx 12. Liability to serve.-(1) A member of the Service shall  be liable to serve at any place whether within or outside the  State  of  Haryana,  on  being  ordered  so  to  do  by  the  appointing authority;

(2) A member of the Service may also be deputed  to serve under,-

(i)  a  company,  an  association  or  a  body  of  individuals  whether  incorporated  or  not,  which  is  wholly  or  substantially  owned  or  controlled  by  the  Government,  a  Municipal  Committee  or  a  local  authority, within the State of Haryana;

(ii)  the Central Government or a company an  association  or  a  body  of  individuals  whether  incorporated or  not,  which is  wholly or  substantially  owned or controlled by the Central Government; or

(iii)   any  other  State  Government,  an  international  organisation,  an  autonomous  body  not  controlled by the Government or a private body; Provided  that  no  member  of  the  service  shall  be  deputed to the Central or any other State Government  or any organisation or body referred to in clause (ii)  and clause (iii) except with his consent. 13. Leave, pension or other matters.-xxx xxx (2) No member of the Service shall have the right of  private practice. 14.  Discipline, penalties and appeals.—(1) in matters  relating to discipline, penalties and appeals, members  of the Service shall be governed by the Punjab Civil  Services  (Punishment  and Appeal)  Rules,  1952,  as  amended from time to time:

Provided  that  the  nature  of  penalties  which  may be imposed, the authority empowered to impose  such penalties and appellate authority shall, subject to  the provisions of any law or rules made under Article  309  of  the  Constitution  of  India,  be  such  as  are  specified in Appendix C to these rules.

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(2)  The authority competent to pass an order under  clause (c) or clause (d) of sub-rule (1) of rule 10 of the  Punjab  Civil  Services  (Punishment  and  Appeal)  Rules, 1952, as amended from time to time, shall be  as specified in Appendix ‘D’ to these rules.”

75.1. Appendix  ‘B’  appended  to  the  1979  Rules  provided  for  

qualification  and experience for  Assistant  District  Attorney.  It  reads as  

follows :

“APPENDIX B”    (See Rule 7)

Qualifications and Experience Designation of post ………………………………………………………………………………

For Promotion/transfer For direct recruitment

Assistant District Attorney (i)   Degree of Bachelor of Law of  (i) Degree of Bachelor of Law        a recognised university; and       of recognised university;  

     and

   (ii)who has practiced at the bar (ii) who has worked -         for a period of not less than  (a)  for a period of not less than         two years        five years, as Assistant in any        post in the equivalent or higher        scale in any Government office;        or

(b)  for a period of not less than three         years on an assignment        (not less than that of an Assistant;         involving  legal work to any         Government office.”   

-----------------------------------------------------------------------------------------------------------------------------------

76. Of the other appellants, Rajesh Malhotra at the time of making  

application was Public Prosecutor in the office of CBI. His services were  

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governed by the General Rules and CBI (Legal Advisers and Prosecutors)  

Recruitment Rules, 2002.   It is not necessary to refer to these Rules in  

detail.   Suffice it to say that a Public Prosecutor in CBI is appointed by  

Union Public Service Commission by direct recruitment or by promotion  

from  in-service  Assistant  Public  Prosecutors  or  by  deputation  from  in-

service government servants. Service conditions which are applicable to  

any government servant or a member of civil service are applicable to such  

Public Prosecutor. Insofar as Dinesh Kumar Mittal is concerned, admittedly  

he was working as Deputy Advocate General in the State of Punjab at the  

time of his application.   In the impugned judgment, he has been held to be  

full-time employee of the Punjab Government.         

77.      We do not think there is any doubt about the meaning of the  

expression “advocate or pleader” in Article 233(2) of the Constitution. This  

should bear the meaning it had in law preceding the Constitution and as  

the  expression  was generally  understood.  The expression  “advocate  or  

pleader” refers to legal practitioner and, thus, it means a person who has a  

right  to  act  and/or  plead  in  court  on  behalf  of  his  client.  There  is  no  

indication in the context to the contrary.  It  refers  to  the  members  of  the  

Bar   practising   law.    In  other  words,   the  expression   “advocate  or  

pleader”  in  Article  233(2)  has  been  used  for  a  member  of  the  Bar  

who conducts cases  in  court or, in other words acts and/or pleads in court  

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on behalf of  his client.   In  Sushma  Suri6, a three-Judge Bench of this  

Court construed the expression  “members of the Bar” to mean class of  

persons  who  were  actually  practising  in  courts  of  law  as  pleaders  or  

advocates.  A Public Prosecutor or a Government Counsel on the rolls of  

the State Bar Council and entitled to practice under the 1961 Act was held  

to  be covered by the expression ‘advocate’  under  Article 233(2).    We  

respectfully agree.

78. In U.P. State Law Officers Association13, this Court stated that  

though the lawyers of the Government or a public body on the full-time  

rolls of the government and the public bodies are described as their law  

officers, but nevertheless they are professional practitioners.  It is for this  

reason, the Court said that the Bar Council  of India in Rule    49 of the BCI  

Rules  (in  its  original  form)  in  the  saving  clause  waived  the  prohibition  

imposed by the said rule against the acceptance by a lawyer of a full-time  

employment.    In Sushma Suri6, a three-Judge Bench of this Court while  

considering the meaning of the expression “advocate” in Article 233(2) of  

the Constitution and unamended Rule   49 of the BCI Rules held     that if a  

person  was  on  the  rolls  of  any  Bar  Council  and  is  engaged  either  by  

employment  or otherwise by the Union or  State and practises before a  

court as an advocate for and on behalf of such Government, such person  

does not cease to be an advocate. This Court went on to say that a Public  

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Prosecutor or a Government Counsel  on the rolls of  the Bar Council  is  

entitled  to  practice.    It  was laid down that  test  was 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. The terms of engagement do not matter at all and what matters  

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. The functions which  

the law officer  discharges on his engagement  by the Government  were  

held decisive.  We are in full agreement with the above view in Sushma  

Suri6.

79. While referring to unamended Rule 49, this Court in  Sushma  

Suri6  said  that  Bar  Council  of  India  had  understood  the  expression  

“advocate”  as  one  who  is  actually  practising  before  courts  which  

expression would include even those who are law officers employed  as  

such by the Government or a body corporate.   

80. Have the two subsequent decisions in Satish Kumar Sharma7  

and Mallaraddi H. Itagi18  differed from Sushma Suri6? Is there any conflict  

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or  inconsistency  in  the  three  decisions?   Satish  Kumar  Sharma7  and  

Mallaraddi H. Itagi18 are the two decisions on which very heavy reliance  

has been placed on behalf of the successful writ-petitioners (respondents).  

In Satish Kumar Sharma7, which has been elaborately noted in the earlier  

part  of  the  judgment,  this  Court  found  from the  appointment/promotion  

orders in respect of the appellant therein that he was required to work in  

the  legal  cell  of  the  Secretariat  of  the  Board.   Central  to  the  entire  

reasoning  in  Satish  Kumar  Sharma7 is  that  being  a  full-time  salaried  

employee he had/has to attend many duties and his work was not mainly  

and exclusively to act or plead in court.  Mere occasional appearances on  

behalf of the Board in some courts were not held to be sufficient to bring  

him within the meaning of expression ‘Law Officer’.   In the backdrop of  

nature of the office that the appellant therein held and the duties he was  

required to perform and in the absence of any rules framed by the State  

Bar Council with regard to enrolment of a full time salaried Law Officer, he  

was held to be  not entitled for enrolment and the exception set out in  

paragraphs 2 and 3 of unamended Rule 49 of the BCI Rules was not found  

to be attracted. In  Satish Kumar Sharma7,  this Court did apply the  test  

that was  enunciated in  Sushma Suri6 viz., whether a person is engaged to  

act and/or plead in a court of law to find out whether he is an advocate. In  

Satish Kumar Sharma7 when this Court observed with reference to Chapter  

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II of the BCI Rules that an advocate has a duty to the court, duty to the  

client, duty to the opponent and duty to the colleagues unlike a full time  

salaried  employee  whose  duties  are  specific  and  confined  to  his  

employment, the Court had in mind such full-time employment which was  

inconsistent  with practice in law.  In para 23 of  the judgment  in  Satish  

Kumar Sharma7,  pertinently this Court  observed that the employment of  

appellant therein as a head of legal cell in the Secretariat of the Board was  

different from the work of the Prosecutors and Government  Pleaders in  

relation to acting and pleading in Court.  On principle of law, thus, it cannot  

be said that there is any departure in Satish Kumar Sharma7 from Sushma  

Suri6.

81. In  Mallaraddi H. Itagi18, the appellants were actually found to  

be  government  servants  when  they  made  applications  for  the  post  of  

District Judges. The High Court in its judgment in Mallaraddi H. Itagi17 had  

noticed that the appellants had surrendered their certificate of practice and  

suspended  their  practice  on  their  appointment  as  Assistant  Public  

Prosecutors/Senior  Assistant  Public  Prosecutors/Public  Prosecutors  in  

terms of Karnakata  Recruitment Rules. It was on this basis that Karnataka  

High Court held that  Sushma Suri6  was not applicable to the case of the  

appellants. There is consonancy and congruity with the decisions of this  

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Court  in  Sushma Suri6,  Satish Kumar Sharma7  and  Mallaraddi  H. Itagi18   

and, in our opinion, there is no conflict or inconsistency on the principle of  

law.

82. In none of the other decisions viz.,  Mundrika Prasad Sinha1,  

Mukul  Dalal2  and  Kumari  Shrilekha Vidyarthi3,  it  has  been held  that  a  

Government  Pleader  or  a  Public  Prosecutor  or  a  District  Government  

Counsel, on his appointment  as a full-time salaried employee subject to  

the  disciplinary  control  of  the  Government,  ceases  to  be  a  legal  

practitioner.  In Kumari Shrilekha Vidyarthi3 while dealing with the office of  

District  Government  Counsel/  Additional  District  Government  Counsel,  it  

was held that the Government Counsel in the district were law officers of  

the State which were holders of an ‘office’ or ‘post’ but it was clarified that  

a District Government Counsel was not to be equated with post under the  

government in strict sense.  In   Ramesh Chandra Sharma21,  this Court  

reiterated  that  the  appointment  of  any  legal  practitioner  as  a  District  

Government Counsel is only a professional engagement.

83. However,  much  emphasis  was  placed   on  behalf  of  the  

contesting respondents on Rule 49 of the BCI  Rules which provides that  

an  advocate  shall  not  be  a full  time salaried  employee  of  any  person,  

government,  firm,  corporation  or  concern  so  long  as  he  continues  to  

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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  practice  as  an  advocate  so  long  as  he  continues  in  such  

employment.  It  was submitted that  earlier  in Rule 49 an exception was  

carved out that a ‘Law Officer’ of the Central Government or of a State or  

of a body corporate who is entitled to be enrolled under the rules of State  

Bar Council shall not be affected by the main provision of Rule 49 despite  

his being a full time salaried employee but by Resolution dated 22.6.2001  

which was published in the Gazette  on 13.10.2001,  the Bar  Council  of  

India has deleted the said provision and hence on and from that date a full  

time salaried employee, be he Public Prosecutor or Government Pleader,  

cannot be an advocate under the 1961 Act.  

84. Admittedly, by the above resolution of the Bar Council of India,  

the second and third para of Rule 49 have been deleted but we have to  

see the effect of such deletion. What Rule 49 of the BCI Rules provides is  

that 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.  The  ‘employment’  spoken  of  in  Rule  49  does  not  cover  the  

employment  of  an  advocate  who  has  been  solely  or,  in  any  case,  

predominantly employed to act and/or plead on behalf of his client in courts  

of law.  If a person has been engaged to act and/or plead in court of law as  

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an advocate although by way of employment on terms of salary and other  

service conditions, such employment is not what is covered by Rule 49 as  

he continues to practice law but, on the other hand, if he is employed not  

mainly to act and/or plead in a court of law, but to do other kinds of legal  

work, the prohibition in Rule 49 immediately comes into play and then he  

becomes  a  mere  employee  and  ceases  to  be  an  advocate.  The  bar  

contained in Rule 49 applies to an employment for work other than conduct  

of cases in courts as an advocate. In this view of the matter, the deletion of  

second  and  third  para  by  the  Resolution  dated  22.6.2001  has  not  

materially  altered  the  position  insofar  as  advocates  who  have  been  

employed by the State Government or the Central Government to conduct  

civil and criminal cases on their behalf in the courts are concerned.  

85. What we have said above gets fortified by Rule 43 of the BCI  

Rules.  Rule  43  provides  that  an  advocate,  who  has  taken  a  full-time  

service or part-time service inconsistent with his practising as an advocate,  

shall send a declaration to that effect to the respective State Bar Council  

within  time  specified  therein  and  any  default  in  that  regard  may  entail  

suspension of the right to practice. In other words, if full-time service or  

part-time service taken by an advocate is consistent with his practising as  

an advocate, no such declaration is necessary. The factum  of employment  

is  not  material  but  the  key  aspect  is  whether  such  employment  is  

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consistent with his practising as an advocate or, in other words, whether  

pursuant  to  such employment,  he  continues  to  act  and/or  plead in  the  

courts.  If the answer is yes, then despite employment he continues to be  

an advocate.   On the other hand, if the answer is in negative, he ceases to  

be an advocate.  

86. An advocate has a two-fold duty: (1) to protect the interest of  

his client and pursue the case briefed to him with the best of his ability, and  

(2) as an officer of the Court.  Whether full-time employment creates any  

conflict  of  duty  or  interest  for  a  Public  Prosecutor/Assistant  Public  

Prosecutor?  We do not think so.  As noticed above, and that has been  

consistently stated by this Court, a  Public  Prosecutor is not a mouth-piece  

of  the  investigating  agency.   In  our  opinion,  even  though  Public  

Prosecutor/Assistant  Public  Prosecutor  is  in  full-time  employ  with  the  

government and is subject to disciplinary  control of the employer, but once

he appears in the court for conduct of a case or prosecution, he is guided  

by the norms consistent with the interest of justice.  His acts always remain  

to serve and protect the public interest.  He has to discharge his functions  

fairly, objectively   and within  the framework of the legal provisions. It may,  

therefore,  not be correct to say that an Assistant Public Prosecutor is not  

an officer of the court.  The view in Samarendra Das22 to the extent it holds  

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that an Assistant Public Prosecutor is not an officer of the Court is not a  

correct view.  

87. The  Division  Bench  has  in  respect  of  all  the  five  private  

appellants  –  Assistant  District  Attorney,  Public  Prosecutor  and  Deputy  

Advocate General – recorded undisputed factual position that they were  

appearing  on  behalf  of  their  respective  States  primarily  in  criminal/civil  

cases and their appointments were basically under the C.P.C.  or Cr.P.C.  

That means their job has been to conduct cases on behalf of the State  

Government/C.B.I. in courts.  Each one of them continued to be enrolled  

with the respective State Bar Council. In view of this factual position  and  

the legal position that we have discussed above, can it be said that these  

appellants were ineligible for appointment to the office of Additional District  

and Sessions Judge?  Our answer is in the negative.  The Division Bench  

committed  two  fundamental  errors,  first,  the  Division  Bench  erred  in  

holding that  since these appellants  were in full-time employment  of  the  

State  Government/Central  Government,   they  ceased  to  be  ‘advocate’  

under the 1961 Act and the BCI Rules, and second, that being a member  

of  service,  the  first  essential  requirement  under  Article  233(2)  of  the  

Constitution that such person should not be in any service under the Union  

or the State was attracted.  In our view, none of the five private appellants,  

on  their  appointment  as  Assistant  District  Attorney/Public  

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Prosecutor/Deputy Advocate General,  ceased to be ‘advocate’ and since  

each one of them  continued to be ‘advocate’, they cannot be considered  

to be in the service of the Union or the State within the meaning of Article  

233(2). The view of the Division Bench is clearly erroneous and cannot be  

sustained.

88. As regards construction of the expression, “if he has been for  

not  less  than  seven  years  an  advocate”  in  Article  233(2)  of  the  

Constitution, we think Mr. Prashant Bhushan was right in his submission  

that  this  expression  means  seven  years  as  an  advocate  immediately  

preceding the application and not seven years any time in the past. This is  

clear by use of ‘has been’. The present perfect continuous tense is used  

for a position which began at some time in the past and is still continuing.  

Therefore,  one  of  the  essential  requirements  articulated  by  the  above  

expression in Article 233(2) is that such person must with requisite period  

be continuing as an advocate on the date of application.  

89. Rule 11 of the HSJS Rules provides for qualifications for direct  

recruits  in  Haryana  Superior  Judicial  Service.  Clause  (b)  of  this  rule  

provides that the applicant must have been duly enrolled as an advocate  

and has practised for a period not less than seven years. Since we have  

already held that these five private appellants did not cease to be advocate  

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while  working  as  Assistant  District  Attorney/Public  Prosecutor/Deputy  

Advocate General,  the period during which they have been working as  

such has to be considered as the period practising law. Seen thus, all of  

them  have  been  advocates  for  not  less  than  seven  years  and  were  

enrolled as advocates and were continuing as  advocates on the date of  

the application.  

90. We,  accordingly,  hold  that  the  five  private  appellants  

(Respondent Nos. 9,12,13,15 and 18 in CWP No. 9157/2008 before the  

High Court) fulfilled the eligibility under Article 233(2) of the Constitution  

and  Rule  11(b)  of  the  HSJS  Rules  on  the  date  of  application.  The  

impugned judgment as regards them is liable to be set aside and is set  

aside.

91. Appeals are allowed as above with no order as to costs.

    …………………….J.                                  (R.M. Lodha)

                        ..…………………….J.   (Anil R. Dave)

                       ..…………………….J.             (Ranjan Gogoi)

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NEW DELHI JANUARY 21, 2013.        

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