Judicial service and advocate status under Article 233(2) determine eligibility for District Judge appointment

Article 233(2) refers to the judicial service only, not other government employment, when identifying eligible appointees from "the service". A government law officer who is engaged to act and/or plead in court on behalf of the Government does not cease to be an advocate merely because of full-time government employment, so such service can count toward the advocate qualification. The requirement that a candidate "has been for not less than seven years an advocate" calls for continuous standing as an advocate up to the relevant application date. On that construction, the appellants' eligibility for appointment as Additional District and Sessions Judge was upheld.

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Issues: (i) Whether the expression "the service" in Article 233(2) of the Constitution means any government service or only the judicial service; (ii) Whether a Public Prosecutor, Assistant Public Prosecutor, District Attorney, Assistant District Attorney or Deputy Advocate General in full-time government employment ceases to be an advocate and is therefore ineligible for appointment as District Judge under Article 233(2) and Rule 11(b) of the Haryana Superior Judicial Service Rules, 2007; (iii) Whether the requirement that a candidate "has been for not less than seven years an advocate" means seven years immediately preceding the application.

Issue (i): Whether the expression "the service" in Article 233(2) of the Constitution means any government service or only the judicial service.

Analysis: Article 233 draws a clear distinction between appointments from judicial service under clause (1) and appointments of persons not already in service under clause (2). The expression "the service" in clause (2) was construed consistently with the constitutional scheme governing subordinate courts, the definition of judicial service, and the need to preserve judicial independence. The settled construction in the constitutional cases relied upon was that the phrase refers only to the judicial service and not to executive or other government services.

Conclusion: The expression "the service" in Article 233(2) means the judicial service only, not any other government service.

Issue (ii): Whether a Public Prosecutor, Assistant Public Prosecutor, District Attorney, Assistant District Attorney or Deputy Advocate General in full-time government employment ceases to be an advocate and is therefore ineligible for appointment as District Judge under Article 233(2) and Rule 11(b) of the Haryana Superior Judicial Service Rules, 2007.

Analysis: The controlling question was whether such law officers continued to act and plead in court as advocates, or whether their employment converted them into mere government employees outside the concept of an advocate. The Court held that the decisive test is the nature of the functions actually performed. Where the law officer is engaged to act and/or plead in court on behalf of the Government, the employment does not by itself destroy advocate status. The deletion of the exception in Rule 49 of the Bar Council of India Rules did not alter this position for law officers whose principal duty remains court conduct of cases. The Court distinguished cases where the employee's work was mainly in a legal cell or other non-litigation duties, and held that the appellants, who were conducting civil/criminal cases for the State or Central Government, continued to be advocates and were not disqualified on that ground.

Conclusion: Such government law officers did not cease to be advocates, and they were not ineligible on that ground.

Issue (iii): Whether the requirement that a candidate "has been for not less than seven years an advocate" means seven years immediately preceding the application.

Analysis: The phrase "has been" was read in its ordinary present-perfect sense to require continuity up to the relevant date. The qualification was therefore not satisfied by some remote, broken or past period of enrolment alone. Since the appellants continued to be advocates while serving as law officers and that period counted as practice, their advocacy experience was to be reckoned up to the date of application.

Conclusion: Yes. The seven years must be the period immediately preceding the application, and the appellants satisfied that requirement.

Final Conclusion: The impugned quashing of the five appellants' appointments could not be sustained, and their eligibility for appointment as Additional District and Sessions Judge was upheld.

Ratio Decidendi: For the purposes of Article 233(2), a Government law officer who is engaged to act and/or plead in court on behalf of the Government continues to be an advocate, and the expression "the service" refers only to the judicial service; the seven-year qualification requires continuous standing as an advocate up to the relevant application date.

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