TaxTMI 
TaxTMI 
2013 (1) TMI 931
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....ed 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 sh....
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....ppointment, 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. 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 th....
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..... 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, 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 proceedi....
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....inted 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....
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....ntered 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." 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 fulf....
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....oration 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 ....
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....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 practice at the Bar before their engagement as Assistant District Attorneys/Public Prosecutors. 23. Mr. P.P. Rao, learned ....
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....s 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 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 emolument....
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....nt 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 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 ....
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....t Rules, 1962 did not allow the Public Prosecutors to appear as advocates before the Court; the candidates therein admitted 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 b....
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....his 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 & Another[(2008) Labour & Industrial Cases 1784], 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 Sudhakar Govindrao Deshpande v. State of Maharashtra and Others[(1986) Labour & Industrial Cases 710], Allahabad High Court in Akhilesh Kumar Misra and Others v. The High Court of Judicature at Allahabad and Others[AIR (1995) Allahabad 148] 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 employ....
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....er 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....
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....d 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 wi....
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....pointment 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." 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 positi....
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.... 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, o....
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....49. In State of U.P. and Others v. U.P. State Law Officers Association and Others[(1994) 2 SCC 204], 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 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 an....
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....s 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 issu....
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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 ....
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....ar 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 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 ....
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.... 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; (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 exclu....
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....icant 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 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 Others[(2009) 8 SCC 273], with reference to the provisions contained in the Le....
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....c 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 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....
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....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....
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....der 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 on 18.05.2009[Civil Appeal Nos. 947-956 of 2003, Mallaraddi H. Itagi and Ors. v. High Court of Karnataka and Ors.] and, upholding the judgment of....
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....he 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 Chandra Mohan4, Satya Narain Singh5 and Rameshwar Dayal9. It was observed as follows: " . . . . . . . . the phrase "has been....
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.... 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 appoint....
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....ssistant 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....
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....ides 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 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 America[295 U.S. 78] , ....
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....; 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 ....
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.... 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....
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....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 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 d....
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.... 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. (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 t....
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.... 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 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 ....
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....ariat 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 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 f....
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....he 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 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 t....
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....is 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 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 ....