@JUDGMENTTAG-ORDER
Hon''ble Shri Arun Mishra, CJ
1. The controversy involved in these writ applications is squarely covered by the decision rendered by the Division Bench of this Court at Jaipur Bench, Jaipur in D.B. Civil Writ Petition No. 882/2012 Pawan Kumar Vashistha V/s High Court of Judicature for Rajasthan Jodhpur and anr. (decided on 21.2.2012 alongwith 19 other connected matters). The said decision rendered in the case of Pawan Kumar Vashistha (supra) is quoted below:-
The question posed for consideration in the writ petitions is whether full time salaried employees, Assistant Public Prosecutors are entitled to count the period, which they have spent as Assistant Public Prosecutor, towards seven years experience or in other words, they can be treated to be an Advocate for the purpose of appointment by direct recruitment to the post of District Judge, as provided under Article 233(2) of the Constitution of India.
It is submitted by the petitioners that they have been enrolled as advocate by the Bar Council of Rajasthan; thereby they started practicing as advocate and their names have been mentioned on the rolls of Bar Council of Rajasthan. They were appointed after their due selections by the Rajasthan Public Service Commission as Assistant Public Prosecutor. Since then petitioners have been working as Assistant Public Prosecutor Grade-II in different Courts in the State of Rajasthan. They are appearing in criminal Courts and contesting cases on behalf of the State of Rajasthan as Assistant Public Prosecutor, as contemplated u/s 25 of the Code of Criminal Procedure, 1973. The work of the petitioners, inter-alia, includes the job of arguing the cases in the Courts of Magistrates.
The High Court of Rajasthan issued a Notification dated 19.07.2011 inviting applications from the advocates for filling up the vacant posts in the cadre of District Judge by direct recruitment in the Rajasthan Judicial Service in accordance with the provisions of the Rajasthan Judicial Service Rules, 2010 (for short ''the RJS Rules, 2010''), as amended in the year 2011. Pursuant to the said notification, the petitioners submitted applications, however, their applications have been disallowed under Rule 33 of the RJS Rules, 2010. It appears that applications have been disallowed in view of the fact that High Court has not treated the Assistant Public Prosecutors as an advocate. The District Judge has also not issued experience certificate on the basis that Assistant Public Prosecutors are not treated as an advocate. The petitioners further submitted that decision disallowing their application is contrary to the provisions contained in Article 233(2) of the Constitution of India, which provides that only judicial services are excluded, not other services. They have placed reliance on the decision of the Hon''ble Apex Court in
The Bar Council of Rajasthan has filed reply and relying upon Rule 49 contained in Section VII, Chapter-II, Part VI of the Bar Council of India Rules (hereinafter referred to as ''the Rules''), it is contended that Bar Council of India in its meeting held on 22.06.2001, passed a resolution, whereby Second and Third paras of Rule 49 of the Rules providing for enrolment of Law Officers were deleted in consultation with various State Bar Councils. The resolution was also sent for information and compliance to all State Bar Councils. The Bar Council of India has passed a resolution that Law Officers, who have been allowed to practice on behalf of their employers, will cease to practise. The communication by Bar Council of India has been placed on record as Annexure R-2/2 to the reply. It is further contended by Bar Council of Rajasthan that for resumption of practise as advocate, various applications were submitted by the APP I and APP II in the Office of the Bar Council of Rajasthan. The Enrolment Committee of the Bar Council of Rajasthan vide order dated 29.06.2003, held that they are not entitled to get the resumption of practise as advocate and accordingly, the applications submitted by 27 candidates were rejected. The Enrolment Committee of Bar Council of Rajasthan also observed that several Public Prosecutors have not suspended their practice and they are still continuing in the job and directed the Office to find out such persons, who had been enrolled as advocate and thereafter joined the service. It was further directed that notices may be given to them for suspension of their practice as advocate immediately because when they have joined service, their names cannot continue on the rolls of the State Bar Council. A copy of the order dated 29.06.2003 passed by the Enrolment Committee of the Bar Council of Rajasthan has been placed on record along with the reply as Annexure R- 2/3. The Bar Council of India has affirmed the said decision in its meeting dated 6th and 7th November, 2004 and accepted the order passed by the Enrolment Committee of the Bar Council of Rajasthan. It is further contended that Bar Council of India is empowered to exercise general supervision and control over the State Bar Councils. Section 48B of the Advocates Act, 1961 (for short ''the Act of 1961'') empowers the Bar Council of India to give such directions to the State Bar Council or any committee thereof in exercise of its powers of general supervision and control for the proper and efficient discharge of the functions of a State Bar Council or any Committee thereof. The State Bar Council or the Committee is bound to comply with such directions issued by the Bar Council of India. It is also contended that the State Bar Council of Rajasthan has followed the amendments made by the Bar Council of India vide its resolution passed in the meeting dated 22.06.2001. Thus, the Law Officers are not enrolled by the Bar Council of Rajasthan.
The High Court of Rajasthan has also contested the matter and opposed the writ applications.
Mr. S.P. Sharma, Senior Counsel assisted by Mr. S.S. Shekhawat, Mr. Rajendra Prasad with Mr. Madhusudan Shiromani Sharma, Mr. Rakesh Kumar, Mr. Praveen Balwada with Mr. Mamraj Jat, Mr. Deepak Soni, Mr. Chotu Lal, Mr. Poonam Chand Bhandari, Mr. Ashwani Chobisa, Mr. Anil Upman and Mr. Prakash Thakuriya, learned counsel appearing on behalf of petitioners have submitted that since provision has been made in the rules for enrolment framed in 1965 by the Bar Council of Rajasthan i.e. Rules For Admission And Enrolment Of Advocates On The Roll Of The Bar Council of Rajasthan (1965) enabling the Law Officers to have enrolment and the rule has not been deleted, as such it prevails and the Law Officers, who are in services of the State Government or Central Government, cannot be deprived of opportunity to stake their claim as against the post of District Judge. They have also submitted that decision in Sushma Suri''s case (supra), is clear and protects the rights of the petitioners to be recognised as advocate and they are practising in the Courts as they have been appointed u/s 25 of the Code of Criminal Procedure and by the terms of their appointment, they are entitled to practise before the Courts of Judicial Magistrates. Hence, rejection of candidature of petitioners was not justified. They have relied upon the decisions of the Apex Court in the case of
It was also submitted that there are few cases in which incumbents have completed their seven years standing as advocate before entering into the service of A.P.P and thus they cannot be ousted and have to be treated as an advocate, particularly in view of provisions of Section 25 of the Code of Criminal Procedure.
Mr. A.K. Sharma, learned Senior Counsel assisted by Mr. Vishnukant Sharma, Mr. Ashok Gaur, Senior Counsel assisted by Mr. Ashwani Jaiman and Mr. Ajay Choudhary, Mr. N.A. Naqvi, Additional Advocate General(Senior Counsel) assisted by Mr. Mohd. Rahil Kalam appearing on behalf of respondents have submitted that after amendment in Rule 49 of the Rules by the Bar Council of India, it has been accepted by the Bar Council of Rajasthan by passing a resolution and Bar Council of Rajasthan has agreed for deletion of Second and Third paras of Rule 49 of the Rules. They have relied upon the provisions of Section 49(ah) of the Act of 1961 and Rights To Practise contained in Chapter IV of the Act of 1961. They have also relied upon the decision of the Hon''ble Apex Court in Mallaraddi H. Itagi and Ors. Vs. High Court of Karnataka and Anr., 2010 (3) SCT 78, decided on 18.05.2009 and the decision of Kerala High Court in K.R. Biju Babu Vs. High Court Of Kerala & Anr., 2008 (3) SCT 110. They have also submitted that decision of Apex Court in Mallaraddi''s case (supra) was not considered by the High Court of Madhya Pradesh in Jyoti Gupta''s case(supra), as it was not available by the time Madhya Pradesh High Court rendered the decision in 2008. They have also relied upon the decision of the Hon''ble Apex Court in
Before dilating upon the various submissions, it is necessary to notice the various provisions and resolutions, which have been relied upon.
Section 2(a) of the Act of 1961 defines "advocate", which means an advocate entered in any roll under the provisions of the Act. Functions of the Bar Council of India are defined in Section 7 of the Act of 1961. Section 7(1)(g) of the Act of 1961 provides that Bar Council of India shall exercise general supervision and control over State Bar Councils. Section 7(1)(l) provides to perform all other functions conferred on it by or under the Act. Section 7(1) (m) enables the Bar Council of India to do all other things necessary for discharging the aforesaid functions. Provisions of Section 7(1)(g), (l) and (m) of the Act of 1961 are quoted below:-
7. Functions of Bar Council of India. [(1)]. The Functions of the Bar Council of India shall be-
(g) to exercise general supervision and control over State Bar Councils;
(l) to perform all other functions conferred on it by or under this Act.
(m) to do all other things necessary for discharging the aforesaid functions.
Chapter III of the Act of 1961 deals with the Admission and Enrolment of Advocates. Section 24 of the Act of 1961 provides certain conditions, as necessary, to be fulfilled by a person qualified to be admitted as an advocate on a State roll. Section 24(1)(e) of the Act of 1961 provides for fulfillment of such other conditions, as may be specified in the rules made by the State Bar Council under this Chapter. Thus, Section 24 deals with eligibility conditions. Section 24A of the Act of 1961 deals with disqualification for enrolment. Enrolment is the function of the State Bar Council under the aforesaid provisions.
Section 28 of the Act of 1961 deals with the power of State Bar Council to make rules to carry out the purposes of provisions of the Act. Section 28(2)(a) of the Act of 1961 provides for the time within which and form in which an advocate shall express his intention for the entry of his name in the roll of a State Bar Council. u/s 28(2) (c), the State Bar Council provides the form in which an application shall be made to the Bar Council for admission as an advocate on its roll and the manner in which such application shall be disposed of by the enrolment committee of the Bar Council. Section 28(2)(d) of the Act of 1961 provides the conditions subject to which a person may be admitted as an advocate on any such roll. It is necessary that rules framed u/s 28 of the Act of 1961 are approved by the Bar Council of India u/s 28(3) of the Act of 1961.
Section 49 contained in Chapter VI of the Act of 1961 deals with general power of the Bar Council of India to make rules for discharging their functions under the Act. u/s 49(1)(ag) of the Act of 1961, the Bar Council of India has power to make rules and such rules may prescribe the class or category of persons entitled to be enrolled as advocates. u/s 49(1)(ah), the Bar Council of India has the power to lay down the conditions subject to which an advocate shall have the right to practise and the circumstances under which a person shall be deemed to practise as an advocate in a court. The provisions of Section 28(1), (2) as well as Section 49(1)(ag) and (ah) of the Act of 1961 relating to power of State Bar Council and Bar Council of India respectively are quoted below:-
28. Power to make rules.- (1) A State Bar Council may make rules to carry out the purposes of this Chapter.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for-
[(a) the time within which and form in which an advocate shall express his intention for the entry of his name in the roll of a State Bar Council u/s 20;]
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(c) the form in which an application shall be made to the Bar Council for admission as an advocate on its roll and the manner in which such application shall be disposed of by the enrolment committee of the Bar Council.
(d) the conditions subject to which a person may be admitted as an advocate on any such roll;
(e) the instalments in which the enrolment fee may be paid.
49. General power of the Bar Council of India to make rules.- [(1)] The Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe-
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(ag) the class or category of persons entitled to be enrolled as advocates;
(ah) the conditions subject to which an advocate shall have the right to practise and the circumstances under which a person shall be deemed to practise as an advocate in a court;]
Rule 49 of the Rules, initially framed by the Bar Council of India reads as follows:-
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 practise, 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 of 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 u/s 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.
Paras Second and Third of Rule 49 of the Rules have been deleted by the Bar Council of India vide Resolution No. 65, dated 22.06.2001. Thereafter following is the provision remains for institution being Rule 49, Section VII, Chapter-II, Part VI of the Bar Council of India Rules:-
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 practise, 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 practice as an advocate so long as he continues in such employment.
The Bar Council of India sent the proposal to the various State Bar Councils. The Bar Council of Rajasthan considered the matter vide Resolution No. 134/2000, as Bar Council of India invited opinion of the various State Bar Councils. The Bar Council of Rajasthan resolved to delete the Proviso which was contained in Rule 49 of the Rules, wherein Law Officer of Central Government or of State of any Public Corporation or Body constituted by statute are entitled to get enrolment if by the terms of appointment and who by the said terms required to act and/or plead in Courts on behalf of his employer. It was resolved that Proviso to Rule 49 of Chapter II Part VI of the Bar Council of India Rules be recommended to be deleted. Following is the Resolution No. 134/2000 dated 26.11.2000 passed by the Bar Council of Rajasthan:-
Res. No. 134/2000
RESOLVED that Bar Council of Rajasthan is of the opinion that the Proviso to Rule 49 of 11 Chapter II Part VI of the Bar Council of India Rules be and is hereby recommended to be deleted.
Thereafter, the Bar Council of India in its meeting held on 22.06.2001, has taken a decision considering various opinion expressed by the State Bar Councils, as majority of the Bar Councils were in favor of deletion of Second and Third para of the Rule. Following is the Resolution passed by the Bar Council of India in its meeting dated 22.06.2001:-
RESOLUTION:
RESOLVED that the Second and Third paras of Rule 49, Section VII, Chapter II, Part VI of the Bar Council of India Rules providing for enrolment of ''Law Officers'' be and is hereby deleted as the responses received from the majority of the Bar Councils are in favor of deletion of the Rule.
Thereafter, the Bar Council of India issued directives that since Supreme Court has struck down the appearance by Law Officers in Court even on behalf of their employers, the Judgment will operate in the case of all Law Officers. Even if they were allowed to appear on behalf of their employers, all such Law Officers who are till now appearing on behalf of their employers, shall not be allowed to appear as advocates. The State Bar Councils should also ensure that those Law Officers, who have been allowed to practise on behalf of their employers, will cease to practise. It was made clear that those Law Officers, who after joining services obtained enrolment by reason of the enabling provision cannot practice even on behalf of their employers. Following is the Resolution passed by the Bar Council of India in its meeting dated 22nd to 25th December, 2001:-
RESOLUTION:
RESOLVED and further clarified that as Supreme Court has struck down the appearance by Law Officers in Court even on behalf of their employers the Judgment will operate in the case of all Law Officers. Even if they were allowed to appear on behalf of their employers, all such Law Officers who are till now appearing on behalf of their employers shall not be allowed to appear as advocates. The State Bar Councils should also ensure that those Law Officers who have been allowed to practise on behalf of their employers will cease to practise. It is made clear that those Law Officers who after joining services obtained enrolment by reason of the enabling provision cannot practise even on behalf of their employers.
Order of the Enrolment Committee of the Bar Council of Rajasthan dated 29.06.2003 reflecting implementation of amended Rule 49 of the Rules has also been placed on record along with reply. Bar Council of Rajasthan held that applications for resumption of practice as advocate were pending for so many years; it was decided by the Enrolment Committee of the Bar Council of Rajasthan considering the decision of the Hon''ble Apex Court in Satish Kumar Sharma''s case (supra), that present controversy of all the applicants/APPs'' is completely covered by the said decision as the applicants are in Government Service and also full time salaried employees, they cannot get resumption of practice as Advocate and their applications were rejected. It was also noticed by the Bar Council of Rajasthan that several Public Prosecutors have not suspended their practice and they are still continuing in the job. It was directed to find out such persons, who had been enrolled as advocates and thereafter joined the service and to give notice to them for suspension of their practice as advocate immediately because when they have joined service their names cannot continue on the rolls of the State Bar Council. The aforesaid decision taken by the Enrolment Committee of the Bar Council of Rajasthan was accepted by the Bar Council of India.
Article 233 of the Constitution of India is quoted below:-
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.
Rule 33 of R.J.S. Rules, 2010, as amended in 2011, has been framed in exercise of powers conferred by Article 233 and 234 read with proviso to Article 309 of the Constitution of India and all other enabling powers in this behalf by the Governor of Rajasthan in consultation with the Rajasthan Public Service Commission and the High Court of Judicature for Rajasthan, which provides for eligibility for direct recruitment. Rule 33 is quoted below:-
Rule 33. Eligibility for direct recruitment.- For the purpose of direct recruitment under Sub-rule (3) of Rule 31, applications shall be invited by the Court from those Advocates, who fulfill the following conditions of eligibility:-
(i) must have attained the age of 35 years and must not have attained the age of 45 years on the first day of January following the last date fixed for receipt of the applications:
Provided that-
(a) the upper age limit mentioned above shall be relaxed by 5 years in case of candidates belonging to the Scheduled Castes, Scheduled Tribes, Other Backward Classes and Women Candidates.
(b) If a candidate would have been entitled in respect of his/her age to appear at the examination in any year in which no such examination was held, he/she shall be deemed to be entitled in respect of his/her age to appear at the next following examination.
(c) If for any reason, the written examination/ interview is cancelled in any particular year, it shall be open to the High Court to grant age relaxation to the candidate to appear in the next examination.
ii) must hold a degree of Bachelor of Laws (Professional) of any University established by Law in India and recognized as such under the Advocates Act, 1961.
(iii) must have been an Advocate for a period of not less then seven years on the last date fixed for receipt of applications.
(iv) must possess a thorough knowledge of Hindi Written in Devnagri script and Rajasthani dialects and social customs of Rajasthan.
(v) the character of a candidate must be such as to render him suitable in the opinion of the Court in all respects for appointment to the service. He must produce a certificate of good character from the District Judge of the District in which he has been practicing as a lawyer and two such certificates, written not more than six months prior to the date of submission of the application to the Court, from two responsible persons not related to him.
(vi) a person dismissed by the Central Government or by a State Government or convicted of an offence involving moral turpitude or any such offence, which in the opinion of the Recruiting Authority renders him unsuitable for appointment in Judicial Service shall not be eligible for appointment.
(vii) no person shall be appointed as a member of the service unless he is in good mental and bodily health and free from any physical defect likely to interfere with the efficient performance of his duties as a member of the service. Before a candidate is finally approved for appointment by direct recruitment, he shall be required to appear before a medical board which will examine him and certify if he is fit for appointment to the service.
Rule 33(iii) of the R.J.S. Rules, 2010 provides that an advocate, who fulfill the eligibility conditions, must have been an Advocate for a period of not less than seven years on the last date fixed for receipt of applications. He has to produce a certificate of good character from the District Judge of the District in which he has been practising as a lawyer and two such certificates from two responsible persons not related to him, at the time when he is submitting application.
Rules 36 is also relevant, the same is quoted below:-
36. Submission of application:-
(1) While submitting application, candidate shall furnish particulars of 10 judgments of the preceding seven years in which he has argued personally. He shall produce such judgments at the time of interview also.
(2) Every application shall be accompanied by a certificate from the District Judge concerned where ordinarily the applicant is practicing, as to the fitness, character and length of actual practice of the candidate along with such other documents as may be specified.
In case the applicant is practicing in the High Court, the certifying authority shall be Registrar of the concerned High Court.
Rule 36 of the R.J.S. Rules, 2010 provides that while submitting application, candidate have to submit particulars of 10 judgments of the preceding seven years in which, he had argued personally. He shall produce such judgments at the time of interview also. Further, every application shall be accompanied by a certificate from the District Judge concerned about the fitness, character and length of actual practice of the candidate alongwith such other documents as may be specified, as provided in Rule 36 (2) of the R.J.S. Rules, 2010.
Coming to the effect of deletion of Second and Third paras of Rule 49 of the Rules, we find that Bar Council of India has been given extensive power u/s 49(1) (ag) of the Advocates Act, 1961 to specify the class or category of persons entitled to be enrolled as advocates. Section 49(1)(ah) enables the Bar Council of India to frame rules with respect to which an advocate shall have the right to practice and the circumstances under which a person shall be deemed to practise as an advocate in a court. Right to practice on being full time salaried employee has been dealt with under Rule 49. The provision of Rule 49 clearly debars a person who is full time salaried employee of State Government or Central Government to practice as an advocate. Second and Third paras of Rule 49 of the Rules have been deleted by the Bar Council of India, as such, Law Officers, who are appearing in the Court by virtue of terms and conditions of their employment, cannot be said to be fulfilling the requirement of Rule 49 of the Rules. The very purpose of deletion of Second and Third paras of Rule 49 of the Rules is to oust the Law Officers, who are full time salaried employees from the purview of advocates as their enrolment is liable to be suspended. Thus, Rule 49 of the Rules clearly provides that an advocate shall not be a fulltime salaried employee of any person, government, firm, corporation or concern, so long he continues to practise, 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.
The question arises for consideration is that in case any incumbent fails to inform the factum of obtaining full time salaried employment of any person, government, firm, corporation or concern, whether he can still be recognized to be practising as an advocate, the answer is ''No''. It is only the ministerial proceedings for suspension of enrolment when right to practise ceases on obtaining full time employment that an incumbent has to inform the concerned Bar Council where he is enrolled about the factum of obtaining employment, otherwise in case he fails to inform once he has obtained full time salaried employment of the State Government, he cannot be treated to act in the capacity of an advocate, so long he continues in the employment.
As already stated above, the Bar Council of India vide resolution dated 22.06.2001, deleted Second and Third paras of Rule 49 in consultation with various State Bar Councils and the resolution and the amended Rule 49 was sent to all State Bar Councils and directives were also issued u/s 48B of the Act of 1961. Section 48B is quoted below:-
48B. Power to give directions.- (1) For the proper and efficient discharge of the functions of a State Bar Council or any Committee thereof, the Bar Council of India may, in the exercise of its powers of general supervision and control, give such directions to the State Bar Council or any committee thereof as may appear to it to be necessary, and the State Bar Council or the committee shall comply with such directions.
In view of the aforesaid provisions contained in Section 48B of the Act of 1961, it was incumbent upon the Bar Council of Rajasthan to implement it and in fact the Bar Council of Rajasthan has not only resolved to delete the provisions contained in Second and Third paras of Rule 49 of the Rules, but has also implemented the decision of the Bar Council of India. Thus, in our considered opinion, the provisions made in the rules framed by the Bar Council of Rajasthan with respect to enrolment stand superseded, which provided for enrolment of the Law Officers of the State Government inspite of their being full time salaried employee. As soon as the State Bar Council has adopted and implemented the resolution of the Bar Council of India, provisions contrary to same framed by it in 1965 stand otiose. Even otherwise, the Hon''ble Apex Court in Satish Kumar Sharma''s case (supra), has laid down to the effect that provision contained in Rule 49 by Bar Council of India has to prevail and mere non-framing of rules by a State Bar Council u/s 28(2)(d) read with Section 24(1)(e) of the Act cannot dispense with obedience to Rule 49. Rule 49 has been framed by the Bar Council of India in pursuance of powers given to it u/s 49 of the Act of 1961 and the same is binding. Hon''ble Apex Court in Satish Kumar Sharma''s case (supra), in para 9, has laid down thus:-
9. In terms of Section 24 of the Act, a person shall be qualified to be admitted as an advocate if he satisfies the provisions of the Act, the Rules and the rules, if any, made by the State Bar Council besides fulfilling other conditions as laid down in this section. Even if no rules were framed u/s 28(2)(d) read with Section 24(1)(e) of the Act by a State Bar Council, enrolment of a person shall be subject to the provisions of the Act and the Rules. Section 28 has conferred rule-making power on a State Bar Council to carry out the purposes of Chapter III of the Act. A State Bar Council can prescribe conditions subject to which a person may be admitted on any such roll u/s 28((2)(d) of the Act. In the present case the respondent has not framed rules in this regard. u/s 49 of the Act the Bar Council of India has power to make rules for discharging its functions under the Act. Rules are framed by the Bar Council of India exercising the powers conferred on it. In the Preamble, extracted above, to the Rules made u/s 49(1)(c) of the Act read with the proviso thereto it is stated that an advocate shall at all times conduct himself in a manner befitting to his status as an officer of the court, a privileged member of the community, and a gentlemen, bearing in mind that what may be lawful and moral for a person who is not a Member of the Bar, or for a Member of the Bar in his non-professional capacity may still be improper for an advocate. It is further stated that an advocate shall fearlessly uphold the interest of his client, and in his conduct conform to the rules. As is clear from the rules contained in Chapter II of the Rules an advocate has a duty to the court, duty to the client, duty to the opponent and duty to colleagues unlike a full-time salaried employee whose duties are specific and confined to his employment. Rule 49 has a specific purpose to serve when it states that an advocate shall not be a full-time salaried employee of any person, Government, firm, corporation or concern. As already noticed above, Section 24(1) specifically states that a person in addition to satisfying other conditions has also to satisfy the provisions of the Act and the Rules. In other words, the Rules made by the Bar Council of India are to be satisfied. Mere non-framing of rules by a State Bar Council u/s 28(2)(d) read with Section 24(1)(e) of the Act cannot dispense with obedience to Rule 49.
Hon''ble Supreme Court in Mallaraddi H. Itagi and Ors. Vs. High Court of Karnataka and Anr.(supra), has considered the precise question, which is involved in the present cases, whether for appointment to the post of District Judge, Public Prosecutors who are practicing advocates are eligible for appointment as District Judges in terms of qualifications prescribed. It was held that Public Prosecutors were holding a regular post; they were having the regular pay scale; were considered for promotion; were employed by State Government under relevant Rules, they were actually Government servants when they made applications for the posts of District Judges. They had surrendered their licence to practice before the Bar Council when they entered the Government service, clearly indicates that they were not the Advocate. There is nothing in the 1962 Rules, suggesting that the Public Prosecutors working therein would be acting as Advocates. The Apex Court has considered the decision rendered in Sushma Suri''s case (supra) and Satish Kumar Sharma''s case(supra) and observed thus:-
3. On the first question the High Court came to the conclusion that the appellants were not practising Advocates on the date of submission of their applications as was required by the advertisement. The High Court also came to the conclusion that the appellants had not completed seven years of practice as "Advocate". After considering the concerned Rules as also the provisions of Article 233(2), we have no hesitation in holding that since the appellants were members of the regular Government service having been regularly employed under the State Government Rules called "Karnataka Department of Prosecution and Government Litigation Recruitments Rules, 1962" they could not be said to be the Advocates while serving as Assistant Public Prosecutors or Public Prosecutors.
4. Shri Ramasesh, learned counsel appearing for the appellants tried to rely on Rule 49 of the Bar Council of India Rules and 3 submitted that under the second part of that rule since the appellants were doing the duty of Advocate they would be covered in the exception culled out in the second part of the Rule. This contention is clearly incorrect. There is nothing in the Karnataka Department of Prosecution and Government Litigation Recruitment Rules, 1962 suggesting that the persons selected and working therein would be acting as the Advocates before the Courts. On the other hand it is clear that the Public Prosecutors have some other duties under which they are required to work as the Director, Prosecutions and in that Role they are not required or they cannot appear before the Court. Therefore, the question of application of Rule 49 and more particularly the exception therein would not be applicable in the case of the present appellants. We have seen from the impugned judgment that the appellants specifically agreed that they were the Government servants and in that view their consideration is clearly barred under Article 233(2) of the Constitution.
5. Shri Ramasesh, learned counsel tried to rely on the case of
6. The High Court has relied upon the observations made by this Court in the case of Satish Kumar Sharma v. Bar Council of H.P., reported in 2001 (1) S.C.T. 723: (2001) SCC 365. The Court has referred to the facts pertaining to the full employment of the appellants therein. In para 17 the Court observed as under:-
17. Looking to the various appointments/ 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:
(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.
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 past. 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 within the meaning of "Law Officer" in terms of para 3 of Rule 49.
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.
8. In view of the fact that we are taking this view, we need not consider the other contention that the qualifications in advertisement were contrary to Article 233(2) which was rightly not pressed seriously. The appeals have no merits and the same are dismissed without costs.
The Apex court has considered the effect of amendment of Rule 49 of the Rules made by the Bar Council of India, the decision is binding and our conclusions are fortified by the aforesaid decision.
Reliance has been placed by learned Senior Counsel appearing on behalf of the petitioners on the decision of Apex Court in Sushma Suri''s case(supra), wherein Their Lordships have considered the question when Rule 49 was not amended, in para 5 of report in SCC, unamended Rule 49 has been quoted and in para 6, question posed for consideration was whether if a person on being enrolled as an advocate ceases to practise law and takes up 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, whether such a person also answers the description of an advocate under the Act, was the precise question which arose for consideration of Their Lordships. The question posed before Their Lordships was consideration of the unamended provisions of Rule 49 of the Rules which recognised Law Officers of State as Advocates, it has been laid down that Public Prosecutor is to be treated as an advocate. The said enabling provisions have now been deleted. In view of the amendment in the rule, which has been made by the Bar Council of India, the said decision cannot be applied as it was based on unamended provisions.
It was argued that State Bar Council has power to frame the conditions with respect to enrolment and reliance was placed on the decision of the Hon''ble Apex Court in the case of Indian Council of Legal Aid and Advice etc. etc. (supra), in which the Apex Court has considered the question with respect to restriction imposed by the Bar Council of India restraining a person to be enrolled as an advocate having completed 45 years of age, the decision of the Bar Council of India was held to be beyond the rule making power of the Bar Council of India, which is not the case here. In the decision of Indian Council of Legal Aid and Advice etc. etc. (supra), the Hon''ble Apex Court has laid down that the restriction imposed by the Bar Council of India of 45 years of age, was not covered u/s 49(1)(ag) of the Advocates Act, 1961, the provision was not enabling that certain age groups can be debarred only as advocate. In that context, it was laid down that the State Bar Council has the power to make rules and prescribe conditions subject to which a person may be enrolled as an advocate. Hon''ble the Apex Court has further held that there was no material, on which the rule is founded and it was held to be discriminatory as it debars one group of person who have crossed the age of 45 years from enrolment while allowing another group to revive and continue practise even after crossing the age of 45 years. The rule, in our view, therefore, is clearly discriminatory. Thirdly, the Hon''ble Apex Court has held that it is unreasonable and arbitrary as the choice of the age of 45 years is made keeping only a certain group in mind ignoring the vast majority of other persons who were in the service of Government or quasi- Government or similar insitutions at any point of time. The rule, therefore, was held to be violative of Article 14 of the Constitution of India. The said decision is totally distinguishable considering the rule making power of Bar Council of India as the rule is amended in consultation with the various State Bar Councils and it is the mandatory directive issued u/s 48B of the Act of, 1961. The Bar Council of India has the power u/s 49(1)(ag) and 49(1)(ah) of the Act of 1961, to define the class or category of persons, who are entitled to practice as an advocate as well as the conditions subject to which an advocate shall have the right to practise and the circumstances under which a person shall be deemed to practise as an advocate in a court.
Thus, in our considered view, the Bar Council of India is clearly empowered to deal with whether salaried employee of the State Government can have a right to practice in the Court as an advocate and once he is not entitled to practice as an advocate, mere appearance in the Court to argue the cases on behalf of department where he is full time salaried employee, does not confer any right to claim himself to be an advocate in view of amended provision of Rule 49 of the Rules, which clearly debars a person who is full time salaried employee of State Government or Central Government, to practice as an advocate. Rule 49 being mandatory and framed by Bar Council of India u/s 49 of the Act of 1961, will prevail and the same has been followed and implemented by the Bar Council of Rajasathan.
Reliance has also been placed on the decision of the Hon''ble Apex Court in Haniraj L. Chulani Vs. Bar Council of Maharashtra & Goa (supra), wherein Rule 1 framed by the Bar Council of Maharashtra and Goa relating to enrolment of advocates was considered and it was held that the rule restricting entry of person already carrying on other profession does not suffer from vice of any excessive delegation of legislative power and it also does not suffer from absence of any guidelines or exhibits effacement of legislative power. In the instant case, we find that not only the Bar Council of India, but the State Bar Council has also resolved with respect to deletion of Second and Third paras of Rule 49 of the Rules. It cannot be said that the decision is repugnant to any provision or suffered from any bias or vice of arbitrariness or is violative of any provision. It also cannot be said to be beyond the rule making power of Bar Council of India. The State Bar Council has implemented the same, as such, the decision is binding.
Reliance has also been placed on the decision of Madras High Court in K. Appadurai''s case(supra.), decided on 26.08.2010, wherein though reference has been made to the decisions of Sushma Suri''s case(supra) and Satish Kumar Sharma''s case(supra), but decision of the Hon''ble Supreme Court in the case of Mallaraddi''s case (supra), was not taken into account. Thus, the decision of Madras High Court cannot be of useful value to petitioners, in view of the binding precedent of the Apex Court.
The decision of High Court of Madhya Pradesh in Jyoti Gupta''s case(supra), is also distinguishable as the decision turned on the rules framed by the Madhya Pradesh Bar Council. It was not the case set up before the Madhya Pradesh High Court that resolution of Bar Council of India with respect to deletion of Second and Third paras of Rule 49 of the Rules was accepted by the Bar Council of Madhya Pradesh. Rules of State Bar Council of Madhya Pradesh contained exception clause. Besides that, the decision of the Apex Court in Mallaraddi''s case (supra) dated 18.05.2009, is subsequent; it was not available by the time the decision was given by the High Court of Madhyra Pradesh on 07.05.2008. Thus, the decision is distinguishable and cannot be applied in view of clear resolution passed by Bar Council of Rajasthan, which has been placed on record in the instant cases.
Reference has also been made to the order passed by the Bombay High Court in Sunanda''s case (supra), which matter has been referred to the Larger Bench. In the said decision also, the decision of the Hon''ble Apex Court in Mallaraddi''s case (supra) has not been taken into consideration and the matter has been referred to the Larger Bench. There is no final verdict in the matter by the Bombay High Court, as such reference order is of no value.
Interim order of the Single Bench of Jharkhand High Court at Ranchi passed in W.P.(S) Nos. 3193/2011, 3179/2011 and 3228/2011(supra), has also been referred, which was passed on 17.06.2011. The interim order, which is not final adjudication of the matter by the Jharkhand High Court, is also of no avail to the petitioners. We do not find any persuasion from the aforesaid interim order passed by the Jharkhand High Court, when we are deciding the cases finally.
It was submitted that some incumbents have practiced earlier for 7 years before joining services. In our view, the scheme of Rule 33 of the R.J.S. Rules, 2010, as amended in 2011, read with Article 233 of the Constitution of India and Rule 49, makes it clear that a person should be in practice, not a full time salaried employee. Once he is in employment and is not in practice, he cannot be permitted to stake claim to the post of District Judge. The Rules have been framed in exercise of the powers conferred by Article 233 and 234 read with proviso to Article 309 of the Constitution of India and all other enabling powers in this behalf by the Governor of Rajasthan in consultation with the Rajasthan Public Service Commission and the High Court of Judicature for Rajasthan. We find ourselves unable to persuade by the submissions. Apart from that, in Satya Narain Singh''s case (supra) and in
The submission based on Section 25 of Cr.P.C. is equally futile that only provides the appointment of APPs'' to be made in consultation with High Court. The provision does not deal with whether full time salaried employees can be treated as an advocate under the purview of Advocates Act and Rules framed thereunder.
One of the incumbents is enrolled in Madhya Pradesh Bar Council. The fate of that petitioner is also equally covered by the decision of the Hon''ble Apex Court in Mallaraddi''s case(supra) and there cannot be two different yardsticks for appearing in the examination applied in the instant cases.
In view of aforesaid discussion, we find no merit in the petitions and the same are, accordingly, dismissed. Stay applications are also dismissed.
9. Thus, for the reasons given in the aforesaid decision in Pawan Kumar Vashistha''s case (supra), these writ petitions are also liable to be dismissed and the same are dismissed. The stay applications are also dismissed.
