DEEPAK AGGARWAL v. KESHAV KAUSHIK & Ors.

A appellants (Respondent Nos. 9, 12, 13, 15 and 18 in CWP No. 9157/2008 before the High Court) fulfilled the eligibility under Art. 233(2) of the Constitution and r.11 (b) of the HSJS Rules on the date of application. The impugned judgment as regards them and is set aside. [para 90] [479- B D-E] Case Law Reference: c D 1980 (1) SCR 759 1988 (3) SCR 868 1990 (1) Suppl. SCR 625 AIR 1966 SC 1987 1985 (2) SCR 112 1998 (2) Suppl. SCR 187 2001 (1) SCR 34 2003 (1) Suppl. SCR 220 para 21 para 21 para 21 para 21 para 21 para 21 para 21 para 21 E 1961 SCR 874 referred to para 28 (2008) Labour & Industrial Cases 1784 referred to para 39 (1986) Labour & Industrial referred to para 39 F Cases 710 AIR (1995) Allahabad 148 referred to para 39 1 £>94 (1) SCR 348 referred to para 49 G 1995 (3) SCR 672 relied on para 50 2004 (1) Suppl. SCR 560 referred to para 54 2009 (10) SCR 921 referred to para 55 H 2002 (4) Karnataka Law Journal 76 referred to para 56 DEEPAK AGGARWAL v.

KESHAV KAUSHIK 411 2008 (2) MPLJ 486 referred to para 60 A 2010-4-L.W.454 referred to para 61 1995 (4) Suppl. SCR 383 referred to para 62 2004 (1) SCR 532 295 U.S. 78 2010 (4) SCR 103 201 o (6) sec 1 (1994) 4 sec 602 2012 (3) sec 111 1987 (1) SCR 702 overruled referred to para 62 para 66 referred to para 72 referred to para 72 referred to para 72 referred to referred to para 73 para 73 B c CIVIL APPELLATE JURISDICTION : Civil Appeal No. 561 D of 2013. From the Judgment & Order dated 18.05.2010 of the High Court of Punjab & Haryana at Chandigarh in CWP No. 9157 of 2008. E WITH 562-567, 568-572, 573-578, 579-584, 585-590 & 591-596 of 2013. P.P. Rao, B.H. Marlapalle, Mahabir Singh, Chetan F Sharma, Rajiv Datta, Rupinder Singh Suri, Rakesh K. Khanna, P.S. Patwalia, Raju Ramchandran, A.K. Ganguli, J.S. Attri, P.P. Khurana, A. Mariarputham, Vikas Singh, Manjit Singh, AAG, Mahalakshmi Pavani, G. Balaji, Apeksha Sharan, Mukesh Kumar Singh, Ajay Sharma, Rajeev Sharma, Keshav Kaushik, G Kanica, Govind N. Kaushik, Dr.

Kailash Chand, S.S. Ray, R.S. Gulia, Vaibhav Gulia, Rakhi Ray, Rakesh Dahiya, D.Mahesh Babu, Sudeepa, Aman S. Bhardwaj, Shailendra Bhardwaj, Ajay Veer Singh, R.K. Verma, Nitin Jain, Anisha Jain, Mohd. lrshad Hanif, Pallavi Tayal, Bela Khattar Chauhan, Surender Chauhan, H 412 SUPREME COURT REPORTS [2013) 1 S.C.R. A Vibhuti Sushant Gupta, Govind Narayan Kaushik, Seema Rao, Ashok K. Mahajan, Nikhil Nayyar, T.V.S. Raghavendra Sreyas, Pritha Srikumar, Siddharth Mittal, S.K. Sabharwal, Prashant Bhushan, Rameshwar Prasad Goyal, Priyanka Bharihoke, Jayshree Wad, Rajesh Singh Chauhan, Tamali Wad, Ashish B Wad, Kanika Bhutani (for J.S. Wad & Co.), Annam D.N. Rao Neelam Jain, Yusuf Khan, Sudhir Talwar, Nitin Mishra, Prashant Chaudhary, Pratap Venugopal, Surekha Raman, Namrata Sood, Ajay Sharma (for K.J. John & Co), Gurvinder Suri, J.H. Jafri, Nidhi Gupta, Tarun Gupta, S. Janani, Gagan Gupta, Ajay c Pal, P.O. Sharma, Ajay Bansal, Devendra Singh, Dhiraj Gupta, Gaurav Yadav, Ajay Choudhary, Surya Kant, Dushyant Parasar, Purnima Jauhari, Jayant Kumar Mehta, Sukant Vikram, Abhinav Sharma, Pardeep Dahiya, Anupama Bansal, Achin Mittal, Shiel Sethi, Ashwani Kumar, Rajeev Kumar Bansal, Akshay K. Ghai, 0 Sanjeev Bansal, Tarun Gupta, Rahul Kaushik, S. Wasim A. Qadri, M.P.S. Tomar, B.V. Bairam Das, Sadhana Sandhu, Anil Katiyar, Kamal Mohan Gupta, Sivan Madathil, Usha Nandini V., Biju P. Raman for the appearing parties. The Judgment of the Court was delivered by E 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 'advocate' or 'pleader' under Article 233(2)? Whather a District Attorney/Additional District Attorney/Public Prosecutor/Assistant Public Prosecutor/ F 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? G These are the questions which have been raised for consideration in this group of appeals.

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. H DEEPAK AGGARWAL v. KESHAV KAUSHIK [R.M. LODHA, J.] 413 The Divi~ion Bench of the High Court by the above judgment A 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 B 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 C 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; (B) As a consequence of the quashment of the selections/ D 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. E {D) Order dated 22.09.2008 (Annexure P-8 in CWP No. F 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 G 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. H 414 SUPREME COURT REPORTS [2013] 1 S.C.R. A (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. "

The appellants in this group of seven appeals are, B 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. c

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 Sessions Judge. The written examinations were D 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 E 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. F

Based on the recommendation of the High Court, the G 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 H DEEPAK AGGARWAL v. KESHAV KAUSHIK [R.M. LODHA, J.] 415 Advocate General have been quashed holding that they did not A 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.

Article 233 of the Constitution of India provides for appointment of District Judges. It reads as follows: 8 "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 C 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 · o Court for appointment. "

Haryana Superior Judicial Service Rules, 2007 (for short, 'HSJS Rules') regulate the appointment of subordinate judges in the State of Haryana. Part Ill of these Rules deals with method of recruitment. Rules 5, 6 and 11 of the HSJS Rules are relevant E 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,- F (i) by promotion from amongst the Haryana Civil Service (Juaicial Branch) in consultation with the High Court; and (ii) by direct recruitment from amongst eligible Advocates on the recommendations of the G 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 H 416 SUPREME COURT REPORTS [2013] 1 S.C.R. A B c D E F G Judges (Senior Division)/Chief Judicial Magistrates/Additional Civil Judges (Senior Division) 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. "

It will be convenient at this stage to refer to some other H provisions which have bearing in the matter and are relevant DEEPAK AGGARWAL v. KESHAV KAUSHIK [R.M. LODHA, J.] 417 for the purpose of these appeals. Section 2(u) of the Code of A . Criminal Procedure, 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: B "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 C 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.

Some of the States have amended Section 24 Cr.P.C. Insofar as Haryana is concerned, an explanation has been C 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 Service (Group B) shall be deemed to be a regular Cadre of D Prosecuting Officers.

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 E 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 F 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 G 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 H 420 SUPREME COURT REPORTS [2013] 1 S.C.R. A Advocate General for the State while performing the functions of public prosecutor shall not be covered by Section 25A.

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 B 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. C

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.

Prior to Indian Advocates Act, 1961, [The Indian] Bar Councils Act, 1926 (for short, '1926 Act') dealt with the functions o 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.

Section 8(1) of the 1926 Act provided as under: (1) No person shall be "8. Enrolment of advocates. - 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. "

Section 9 of the 1926 Act dealt with qualifications and admission of advocates while Section 14 provided for right of advocates to practice.

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 E F G H DEEPAK AGGARWAL v. KESHAV KAUSHIK [R.M. LODHA, J.] 421 ' person shall be enrolled as an advocate on the roll of more than A one State Bar Council. Section 24 provides for the eligibility of the persons who may be admitted as advocates on Sta, te 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 B Bar Council under Chapter Ill. Section 28 empowers a State Bar Council to make rules to carry out the purposes of Chapter Ill. 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 c 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 0 a provision that except as 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. E

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 0). Clause (ah) deals with the conditions subject to which an advocate shall have the right to practice and the circumstances F 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 G 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 H service or part-time service or engaged in business or any 422 SUPREME COURT REPORTS [2013] 1 S.C.R. A 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 of licence to practice. Prior to 2001, Rule 49 of the BCI Rules B 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.

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 c D E F G H DEEPAK AGGARWAL v. KESHAV KAUSHIK [R.M. LODHA, J.] 423 to practise as an advocate so long as he continues in such A employment".

The High Court has held, and in our view rightly, that the consent of Chief Ju$tice 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. 13

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 C 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.

The High Court referred to various decisions including o 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 Others", Satya Narain Singh v. High Court of Judicature at Allahabad and E Others5 , Sushma Suri v. Government of National Capital Territory of Delhi and Another6, Satish Kumar Sharma v. Bar Council of H.P. 7 , Sunil Kumar Goyal v. Rajasthan Public Service Commission8 and finally held that Dinesh Kumar Mittal, Rajesh Malhotra, Deepak Aggarwal, Chandra Shekhar and F Desh Raj Chalia were ineligible at the time of their appointment