# DEEPAK AGGARWAL v. KESHAV KAUSHIK AND OTHERS

- **Citation:** [2013] 1 S.C.R. 402
- **Court:** Supreme Court of India
- **Decided:** 2013-01-21
- **Case number:** Civil Appeal No. 561 of 2013
- **Bench:** R.M. Lodha, Anil R. Dave, RANJAN GOGOi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/deepak-aggarwal-v-keshav-kaushik-and-others-28778
- **Pages:** 78

## Headnote

CONSTITUTION OF IND/A, 1950:
Art. 233(2) - Appointment to the post of Additional District
Judge through direct recruitment from Bar - Eligibility - Held:
One of the essential requirements articulated by the
expression "if he has been for not less than seven years an
D advocate" in Art. 233(2) is that such person must with
requisite period be continuing as an advocate on the date of
application.
Art. 233(2) - Expression 'advocate or pleader' - Held:
Refers to legal practitioner and, thus, it means a person who
E has a right to act and/or plead in court on behalf of his client
-
For the purposes of Art. 233(2) both a Public Prosecutor
and' an Assistant Public Prosecutor are covered by the
expression 'advocate'- Rendering of service as a Public
Prosecutor or as Assistant Public Prosecutor is deemed to
F be practice as an advocate - Code of Civil Procedure, 1908
- ss. 2 (7) and 2(15) ...:. 'Government pleader' - 'Pleader' -
Code of Criminal Procedure, 1973 - ss. 2(4) (as applicable
in State of Haryana) 24 and 25 - Public Prosecutor -
Assistant Public Prosecutor - Bar Council of India Rules -
G rr. 43 and 49.
Art. 233(2) - Appointment to the post of Additional District
Judge through direct recruitment from Bar- Assistant District
Attorney/Public Prosecutor/Deputy Advocate General -
H
402
DEEPAK AGGARWAL v. KESHAV KAUSHIK
403
Eligibility - Held: Since private appellants did not cease to A
be advocate while working as Assistint District Attorney/Public
Prosecutor/Deputy Advocate General, the period during which
they have been working as such has to be considered as the
period practicing law - Thus, all of them have been advocates
for not less than seven years and were enrolled as advocates B
and were continuing as advocates on the date of the
application - They fulfilled the eligibility under Art. 233 (2) of
the Constitution and r. 11 of the HSJS Rules on the date of
application - Haryana Superior Judicial Service Rules, 2007
- rr. 5(ii) and 11.
c
Art. 233 (2) - Expression "the service" occurring in Art.
233(2) means 'judicial service" -
Other members of the
service of Union or State are excluded because Art. 233
contemplates only two sources from which District Judges can
be appointed: (i) judicial service; and (ii) the advocate/pleader D
or in other words from Bar.
The five private appellants, while working as
Assistant District Attorney/Public Prosecutor/Deputy
Advocate General, were selected through direct E
recruitment to the post of Additional District and Sessions
Judge in the Haryana Superior Judicial Service (HSJS).
However, the High Court, in writ petition quashed their
selection holding that they did not have the requisite
criteria to qualify for the recruitment as contemplated in
F
Art. 233 of the Constitution of India and that except
appellant 'RM', the other appellants did not have requisite
experience.
In the instant appeals filed by the five candidates and
the High Court on administrative side, the questions for G
consideration before the Court were: (i) What is meant by
Advocate' or 'pleader' under Art. 233(2)"? (ii) Whether a
District Attorney/Additional District Attorney/Public
Prosecutor/Assistant Public Prosecutor/ Assistant
Advocate General, who is full time employee of the H
404
SUPREME COURT REPORTS
[2013) 1 S.C.R.
A Government and governed and regulated by the statutory
rules of the State and is selected 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?" (iii) "What is the meaning of
B the expression "the service" under Article 233(2) of the
Constitution"?
Allowing the appeals, the Court
HELD: 1.1. Clause (2) of Art. 233 of the Constitution
C of India, 1950 lays down three essentials for appointment
of a person to the post of District Judge; (i) a person shall
not be in service of the Union or of the State; (ii) he has
been for r.ot less than seven years an advocate or a
pleader; and (iii) his name

## Text

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A
B
c
[2013] 1 S.C.R. 402
DEEPAK AGGARWAL
v.
KESHAV KAUSHIK AND OTHERS
(Civil Appeal No. 561 of 2013)
JANUARY 21, 2013
[R.M. LODHA, ANIL R. DAVE AND
RANJAN GOGOi, JJ.]
CONSTITUTION OF IND/A, 1950:
Art. 233(2) - Appointment to the post of Additional District
Judge through direct recruitment from Bar - Eligibility - Held:
One of the essential requirements articulated by the
expression "if he has been for not less than seven years an
D advocate" in Art. 233(2) is that such person must with
requisite period be continuing as an advocate on the date of
application.
Art. 233(2) - Expression 'advocate or pleader' - Held:
Refers to legal practitioner and, thus, it means a person who
E has a right to act and/or plead in court on behalf of his client
-
For the purposes of Art. 233(2) both a Public Prosecutor
and' an Assistant Public Prosecutor are covered by the
expression 'advocate'- Rendering of service as a Public
Prosecutor or as Assistant Public Prosecutor is deemed to
F be practice as an advocate - Code of Civil Procedure, 1908
- ss. 2 (7) and 2(15) ...:. 'Government pleader' - 'Pleader' -
Code of Criminal Procedure, 1973 - ss. 2(4) (as applicable
in State of Haryana) 24 and 25 - Public Prosecutor -
Assistant Public Prosecutor - Bar Council of India Rules -
G rr. 43 and 49.
Art. 233(2) - Appointment to the post of Additional District
Judge through direct recruitment from Bar- Assistant District
Attorney/Public Prosecutor/Deputy Advocate General -
H
402
DEEPAK AGGARWAL v. KESHAV KAUSHIK
403
Eligibility - Held: Since private appellants did not cease to A
be advocate while working as Assistint District Attorney/Public
Prosecutor/Deputy Advocate General, the period during which
they have been working as such has to be considered as the
period practicing law - Thus, all of them have been advocates
for not less than seven years and were enrolled as advocates B
and were continuing as advocates on the date of the
application - They fulfilled the eligibility under Art. 233 (2) of
the Constitution and r. 11 of the HSJS Rules on the date of
application - Haryana Superior Judicial Service Rules, 2007
- rr. 5(ii) and 11.
c
Art. 233 (2) - Expression "the service" occurring in Art.
233(2) means 'judicial service" -
Other members of the
service of Union or State are excluded because Art. 233
contemplates only two sources from which District Judges can
be appointed: (i) judicial service; and (ii) the advocate/pleader D
or in other words from Bar.
The five private appellants, while working as
Assistant District Attorney/Public Prosecutor/Deputy
Advocate General, were selected through direct E
recruitment to the post of Additional District and Sessions
Judge in the Haryana Superior Judicial Service (HSJS).
However, the High Court, in writ petition quashed their
selection holding that they did not have the requisite
criteria to qualify for the recruitment as contemplated in
F
Art. 233 of the Constitution of India and that except
appellant 'RM', the other appellants did not have requisite
experience.
In the instant appeals filed by the five candidates and
the High Court on administrative side, the questions for G
consideration before the Court were: (i) What is meant by
Advocate' or 'pleader' under Art. 233(2)"? (ii) Whether a
District Attorney/Additional District Attorney/Public
Prosecutor/Assistant Public Prosecutor/ Assistant
Advocate General, who is full time employee of the H
404
SUPREME COURT REPORTS
[2013) 1 S.C.R.
A Government and governed and regulated by the statutory
rules of the State and is selected 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?" (iii) "What is the meaning of
B the expression "the service" under Article 233(2) of the
Constitution"?
Allowing the appeals, the Court
HELD: 1.1. Clause (2) of Art. 233 of the Constitution
C of India, 1950 lays down three essentials for appointment
of a person to the post of District Judge; (i) a person shall
not be in service of the Union or of the State; (ii) he has
been for r.ot less than seven years an advocate or a
pleader; and (iii) his name is recommended by the
D relevant High Court for appointment. Thus, as regards a
person not already in service what is required is that he
should be an advocate or pleader of seven years'
standing and that his name is recommended by the High
Court for appointment as District Judge. [para 42] [432E D·F]
1.2. The expression, 'the service' in Art. 233(2) of the
Constitution means the "judicial service". Other members
of the service of Union or State are, as it is, excluded
because Art. 233 contemplates only two sources from
F which the District Judges can be appointed. These
sources are: (i) judiCial service; and (ii) the advocate/
pleader or in other words from the Bar. District Judges
can, thus, be appointed from no source other than judicial
service or from amongst advocates. Article 233(2)
G excludes appointment of District Judges from the judicial
service and restricts eligibility of appointment as District
Judges from amongst the advocates or pleaders having
practice of not less than seven years and who have been
recommended by the High Court as such. [para 46] [439H A-CJ
DEEPAK AGGARWAL v. KESHAV KAUSHIK
405
Chandra Mohan v. State of UP. and Others AIR 1966 A
SC 1987; Satya Narain Singh v. High Court of Judicature at
Allahabad and Others 1985 (2) SCR 112 = 1985 (1) SCC 225
- relied on.
Rameshwar Dayal v. State of Punjab and Others 1961
8
SCR 874 = 1961 AIR 816 - referred to
2. Despite the differences in the role and position of
Public Prosecutor and Assistant Public Prosecutor, for
the purposes of Art. 233(2) there is not much difference
between the two and both of them are covered by the C
expression 'advocate'. It is so for more than one reason.
In the first place, a Public Prosecutor u/s 24 Cr.P.C. is
appointed by the State Government or the Central
Government for conduct of prosecution, appeal or other
proceedings on its behalf in the High Court or for a D
district; and Assistant Public Prosecutor is appointed
u/s 25 Cr.P.C. by the State Government or the Central
Government to conduct prosecution on its behalf in the
courts of Magistrates. So the main function of Public
Prosecutor as well as Assistant Public Prosecutor is to E
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-ss. 24(7)
and 24(8) CrPC, the period, during which a person has
F
rendered service as a Public Prosecutor or as Assistant
Public Prosecutor, is treated as being in practice as an ·
advocate u/s 24(9) Cr.P.C. Thus, the rendering of service
as a PLblic Prosecutor or as Assistant Public Prosecutor
is deemed to be practice as an advocate. [para 74] [467G
E-H; 468-A-B]
Sushma Suri v. Government of National Capital Territory
of Delhi and Another 1998 (2) Suppl. SCR 187 = 1999 (1)
sec 330 - relied on
H
406
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A
Smt. Jyoti Gupta v. Registrar General, High Court of M. P.,
B
Jaba/pur and Another 2008 (2) MPLJ 486; K. Appadurai v
The Secretary to Government of Tamil Nadu and Another
2010-4-L.W.454 - approved
State of UP. & Another v. Johri Mal 2004 (1) Suppl.
SCR 560 = 2004 (4) SCC 714; Mahesh Chandra Gupta v.
Union of India and Others 2009 (10) SCR 921 = 2009
(8) SCC 273; State of U. P. v. Ramesh Chandra Sharma and
others 1995 (4) Suppl. SCR 383 = 1995 (6) SCC 527; Satish
Kumar Sharma v. Bar Council of H.P. 2001 (1) SCR
C 34 = 2001 (2) SCC 365; Sudhakar Govindrao Deshpande v.
State of Maharashtra and Others (1986) Labour & Industrial
Cases 710; K.R. Biju Babu v. High Court of Kera/a & Another
(2008) Labour & Industrial Cases 1784; Chandra Mohan
v. State of U.P. and Others AIR 1966 SC 1987; Sunil Kumar
D
Goyal v. Rajasthan Public Service Commission 2003 (1)
Suppl. SCR 220 = 2003 (6) SCC 171; Muku/ Dalal and
Others v. Union of India and Others 1988 (3) SCR 868 = 1988
(3) SCC 144 Sidhartha Vashisht alias Manu Sharma v. State
(NCT of Delhi) 2010 (4) SCR 103 = 2010 (6) SCC 1; Shiv
E
Kumar v. Hukam Chand and Another (1999) 7 SCC 467 and
Hitendra Vishnu Thakur and Others v. State of Maharashtra
and Others (1994) 4 SCC 602; Centre for Public Interest
Litigation and Others v. Union of India and Others 2012 (3)
SCC 117, Sheonandan Paswan v. State of Bihar and
F
Others 1987 (1) SCR 702 = 1987 (1) SCC 288; S.B. Shahane
and Others v. State of Maharashtra and Another 1995 (3)
SCR 672 = 1995 Supp (3) SCC 37- referred to
Samarendra Das, Advocate v. State of West Bengal and
G
Others 2004 (1) SCR 532 = 2004 (2) sec 274 - overruled
Harry Berger v. United States of America 295 U.S. 78 -
referred to.
The Eighth United Nations Congress on the Prevention
H of Crime and the Treatment of Offenders; Standards of
DEEPAK AGGARWAL v. KESHAV KAUSHIK
407
Professional. Responsibility and Statement of the Essential A
Duties and Rights of Prosecutors; European Guidelines on
Ethics and Conduct for Public Prosecutors; The Budapest
Guidelines adopted in the Conference of Prosecutors
General of Europe on 31st May, 2005 - referred to
3.1. There is no doubt about the meaning of the
B
expression "advocate or pleader" in Art. 233(2) of the
Constitution. This should bear the meaning it had in law
preceding the Constitution and as the expression was
generally understood. The expression "advocate or
pleader" refers to legal practitioner and, thus, it means a C
person who has a right to act and/or plead in court on
behalf of his client. There is no indication in the context
to the contrary. It refers to the members of the Bar
practising law. The expression "advocate or pleader" in
Art. 233(2) has been used for a member of the Bar who
D
conducts cases in court or, in other words acts and/or
pleads in court on behalf of his client. [para 77] [472-A-C]
Sushma Suri v. Government of National Capital Territory
of Delhi and Another 1998 (2) Suppl. SCR 187 = 1999 (1)
E
sec 330 - relied on
Satish Kumar Sharma v. Bar Council of H.P. 2001
(1) SCR 34 = 2001 (2) SCC 365; Mallaraddi H. ltagi and
Others v. The High Court of Karnataka, Bangalore and
Another 2002 (4) Karnataka Law Journal 76; Mundrika
F
Prasad Sinha v. State of Bihar 1980 (1) SCR 759 =
1979 AIR 1871; Kumari Shrilekha Vidyarthi and Others v.
State of U.P. and Others 1990 (1) Suppl. SCR 625 = 1991
(1) SCC 212; State of U.P. and Others v. U.P. State Law
Officers Association and Others 1994 (1) SCR 348 = 1994 (2)
G
SCC 204 ; Gurjot Kaur and Others v. High Court of Jam mu
and Kashmir and Another decided on 14.09.2010, Akhilesh
Kumar Misra and Others v. The High Court of Judicature at
Allahabad and Others AIR (1995) Allahabad 148 - referred
to.
H
408
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A
3.2. What r. 49 of the BCI Rules provides is that an
advocate shall not be a full time salaried employee of any
person, government, firm, corporation or concern so long
as he continues to practice. The 'employment' spoken of
in r. 49 does not cover the employment of an advocate
B who has been solely or, in any case, predominantly
employed to act and/or plead on behalf of his client in
courts of law. If a person has been engaged to act and/
or plead in court of law as an advocate although by way
of employment on terms of salary and other service
c conditions, such employment is not what is covered by
r. 49 as he continues to practice law but, on the other
hand, if he is employed not mainly to act and/or plead in
a court of law, but to do other kinds of legal work, the
prohibition in r. 49 immediately comes into play and then
0 he becomes a mere employee and ceases to be an
advocate. The bar contained in r. 49 applies to an
employment for work other than conduct of cases in
courts as an advocate. In this view of the matter, the
deletion of second and third para by the Resolution dated
22.6.2001 has not materially altered the position insofar
E as advocates who have been employed by the State
Government or the Central Government to conduct civil
and criminal cases on their behalf in the courts are
concerned. [para 84] [476-C-G)
F
3.3. The Division Bench of the High Court has in
respect of all the five private appellants - Assistant
District Attorney, Public Prosecutor and Deputy Advocate
General - recorded undisputed factual position that they
were appearing on behalf of their respective States
G primarily in criminal/civil cases and their appointments
were basically under the C.P.C. or Cr.P.C. That means
their job has been to conduct cases on behalf of the State
Government/C.B.I. in courts. Each one of them continued
to be enrolled with the respective State Bar Council. In
H view of this factual position and the legal position, it_
DEEPAK AGGARWAL v. KESHAV KAUSHIK
409
cannot be said that these appellants were ineligible for A
appointment to the office of Additional District and
Sessions Judge. None of the five private appellants, on
their appointment as Assistant District Attorney/Public
Prosecutor/Deputy Advocate General, ceased to be
'advocate' and since each one of them continued to be
B
'advocate', they cannot be considered to be in the service
of the Union or the State within the meaning of Art.
233(2). [para 87] [478-A-C-D-E]
4.1. As regards construction of the expression, "if he
C
has been for not less than seven years an advocate" in
Art. 233(2) of the Constitution, this expression means
seven years as an advocate immediately preceding the
application and not seven years any time in the past. This
is clear by use of 'has been'. The present perfect
continuous tense is used for a position which began at
D
some time in the past and is still continuing. Therefore,
one of the essential requirements articulated by the
expression in Art. 233(2) is that such person must with
requisite period be continuing as an advocate on the date
of application. [para 88] [478-F-H; 479-A]
E
4.2. Rule 11 of the HSJS Rules provides for qualifications
for direct recruits in Haryana Superior Judicial Service.
Clause (b) of this rule provides that the applicant must have
been duly enrolled as an advocate and has practised for a
F
period not less than seven years. Since these five private
appellants did not cease to be advocate while working as
Assistant District Attorney/Public Prosecutor/Deputy
Advocate General, the period during which they have been
working as such has to be considered as the period
G
practising law. Thus, all of them have been advocates for
not less than seven years and were enrolled as advocates
and were continuing as advocates on the date of the
application. [para 89] [479-8-D]
5. This Court, accordingly, holds that the five private
H
410
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A appellants (Respondent Nos. 9, 12, 13, 15 and 18 in CWP
No. 9157/2008 before the High Court) fulfilled the eligibility
under Art. 233(2) of the Constitution and r.11 (b) of the
HSJS Rules on the date of application. The impugned
judgment as regards them and is set aside. [para 90] [479B D-E]
c
D
Case Law Reference:
1980 (1) SCR 759
1988 (3) SCR 868
cited
cited
1990 (1) Suppl. SCR 625
cited
AIR 1966 SC 1987
cited
1985 (2) SCR 112
cited
1998 (2) Suppl. SCR 187
2001 (1)
SCR 34
cited
cited
2003 (1) Suppl. SCR 220
cited
E
1961 SCR 874
referred to
(2008) Labour & Industrial
referred to
Cases 1784
(1986) Labour & Industrial
referred to
F
Cases 710
AIR (1995) Allahabad 148
referred to
1 £>94 (1) SCR 348
referred to
G
1995 (3) SCR 672
relied on
H
2004 (1) Suppl. SCR 560
referred to
2009 (10) SCR 921
referred to
2002 (4) Karnataka Law
Journal 76
referred to
para 21
para 21
para 21
para 21
para 21
para 21
para 21
para 21
para 28
para 39
para 39
para 39
para 49
para 50
para 54
para 55
para 56
DEEPAK AGGARWAL v. KESHAV KAUSHIK
411
2008 (2) MPLJ 486
referred to
para 60
A
2010-4-L.W.454
referred to
para 61
1995 (4) Suppl. SCR 383
referred to
para 62
2004 (1) SCR 532
overruled
para 62
B
295 U.S. 78
referred to
para 66
2010 (4) SCR 103
referred to
para 72
201 o (6) sec 1
referred to
para 72
c
(1994) 4 sec 602
referred to
para 72
2012 (3) sec 111
referred to
para 73
1987 (1) SCR 702
referred to
para 73
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 561
D
of 2013.
From the Judgment & Order dated 18.05.2010 of the High
Court of Punjab & Haryana at Chandigarh in CWP No. 9157
of 2008.
WITH
562-567, 568-572, 573-578, 579-584, 585-590 & 591-596 of
2013.
E
P.P. Rao, B.H. Marlapalle, Mahabir Singh, Chetan
F
Sharma, Rajiv Datta, Rupinder Singh Suri, Rakesh K. Khanna,
P.S. Patwalia, Raju Ramchandran, A.K. Ganguli, J.S. Attri, P.P.
Khurana, A. Mariarputham, Vikas Singh, Manjit Singh, AAG,
Mahalakshmi Pavani, G. Balaji, Apeksha Sharan, Mukesh
Kumar Singh, Ajay Sharma, Rajeev Sharma, Keshav Kaushik,
G
Kanica, Govind N. Kaushik, Dr. Kailash Chand, S.S. Ray, R.S.
Gulia, Vaibhav Gulia, Rakhi Ray, Rakesh Dahiya, D.Mahesh
Babu, Sudeepa, Aman S. Bhardwaj, Shailendra Bhardwaj, Ajay
Veer Singh, R.K. Verma, Nitin Jain, Anisha Jain, Mohd. lrshad
Hanif, Pallavi Tayal, Bela Khattar Chauhan, Surender Chauhan,
H
412
SUPREME COURT REPORTS
[2013) 1 S.C.R.
A Vibhuti Sushant Gupta, Govind Narayan Kaushik, Seema Rao,
Ashok K. Mahajan, Nikhil Nayyar, T.V.S. Raghavendra Sreyas,
Pritha Srikumar, Siddharth Mittal, S.K. Sabharwal, Prashant
Bhushan, Rameshwar Prasad Goyal, Priyanka Bharihoke,
Jayshree Wad, Rajesh Singh Chauhan, Tamali Wad, Ashish
B Wad, Kanika Bhutani (for J.S. Wad & Co.), Annam D.N. Rao
Neelam Jain, Yusuf Khan, Sudhir Talwar, Nitin Mishra, Prashant
Chaudhary, Pratap Venugopal, Surekha Raman, Namrata
Sood, Ajay Sharma (for K.J. John & Co), Gurvinder Suri, J.H.
Jafri, Nidhi Gupta, Tarun Gupta, S. Janani, Gagan Gupta, Ajay
c Pal, P.O. Sharma, Ajay Bansal, Devendra Singh, Dhiraj Gupta,
Gaurav Yadav, Ajay Choudhary, Surya Kant, Dushyant Parasar,
Purnima Jauhari, Jayant Kumar Mehta, Sukant Vikram, Abhinav
Sharma, Pardeep Dahiya, Anupama Bansal, Achin Mittal, Shiel
Sethi, Ashwani Kumar, Rajeev Kumar Bansal, Akshay K. Ghai,
0 Sanjeev Bansal, Tarun Gupta, Rahul Kaushik, S. Wasim A.
Qadri, M.P.S. Tomar, B.V. Bairam Das, Sadhana Sandhu, Anil
Katiyar, Kamal Mohan Gupta, Sivan Madathil, Usha Nandini V.,
Biju P. Raman for the appearing parties.
E
The Judgment of the Court was delivered by
R.M. LODHA, J. 1. Leave granted. What is the meaning
of the expression 'the service' in Article 233(2) of the
Constitution of India? What is meant by 'advocate' or 'pleader'
under Article 233(2)? Whather a District Attorney/Additional
District Attorney/Public Prosecutor/Assistant Public Prosecutor/
F Assistant Advocate General, who is full time employee of the
Government and governed and regulated by the statutory rules
of the State and is appointed by direct recruitment through the
Public Service Commission, is eligible for appointment to the
post of District Judge under Article 233(2) of the Constitution?
G These are the questions which have been raised for
consideration in this group of appeals.
H
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.
DEEPAK AGGARWAL v. KESHAV KAUSHIK
413
[R.M. LODHA, J.]
The Divi~ion Bench of the High Court by the above judgment
A
disposed of 12 writ petitions wherein challenge was laid to the
selection and appointment of certain candidates to the post of
Additional District and Sessions Judge in the Haryana Superior
Judicial Service (HSJS) on diverse grounds. The High Court
by its judgment disposed of the writ petitions in the following
B
manner:
"(A) Selections/appointments of respondents no. 9 -
(Dinesh Kumar Mittal), 12 (Rajesh Malhotra), 13 (Deepak
Aggarwal), 15 (Chandra Shekhar) and 18 (Desh Raj
Chalia) in CWP No. 9157 of 2008 (wherever they may be
C
in other writ petitions) as Additional District and Sessions
Judges, are hereby quashed. This direction shall, however,
remain in abeyance for a period of two months to enable
the High Court to make alternative arrangements;
(B) As a consequence of the quashment of the selections/
D
appointments of above named respondents, the resultant
five vacancies shall be filled up from the candidates next
in the order of merit, out of the panel prepared by the
Selection Committee;
(C) The appointment of Fast Track Court Judges by a
process of absorption after further examination and
selection contained in the recommendation of the
Selection Committee dated 18.03.2008 is affirmed.
E
{D) Order dated 22.09.2008 (Annexure P-8 in CWP No.
F
17708 of 2008 rejecting the request of the High Court for
de-reservation of six vacancies (four Scheduled Caste, 2
Backward Classes) is hereby quashed. Resultantly, the
matter is remitted back to the Government to re-consider
the request of the High Court for de-reservation in relaxation
G
of rules by the competent authority empowered under the
Government instructions dated 7.9.2008 and Rule 31 of the
Haryana Superior Judicial Service Rules, 2007. The
process of re-consideration shall be completed within six
weeks and the decision be communicated to the High
Court.
H
414
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A
(E) If on such re-consideration, the State decides to dereserve the vacancies, candidates recommended by the
High Court vide its recommendation letter dated
25.4.2008, shall be appointed."
3. The appellants in this group of seven appeals are,
B Deepak Aggarwal, Dinesh Kumar Mittal, Rajesh Malhotra,
Chandra Shekhar and Desh Raj Chalia, whose selections/
appointments as Additional District and Sessions Judges have
been quashed by the High Court, and the Punjab and Haryana
High Court, Chandigarh on its administrative side.
c
4. On 18.05.2007, the Punjab and Haryana High Court,
Chandigarh through its Registrar General issued a notification
inviting applications for recruitment to certain posts of Additional
District and Sessions Judge. The written examinations were
D conducted pursuant to the said notification wherein 64
candidates were recommended for the interview. After
conducting the interview, the High Court recommended the
names of 16 candidates in order of merit to the post of
Additional District and Sessions Judge in the State of Haryana
E by direct recruitment. Of the 16 candidates recommended by
the High Court, 5 were the appellants. At the time of
appointment, Deepak Aggarwal was working as Assistant
District Attorney in Himachal Pradesh; Chandra Shekhar and
Desh Raj Chalia were working as Assistant District Attorney
F 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
G State of Haryana issued appointment orders. Some of the
unsuccessful candidates filed writ petitions before the High
Court raising diverse grounds of challenge. However, as
indicated above, the appointments of five appellants who were
working as Assistant District Attorney/Public Prosecutor/Deputy
H
DEEPAK AGGARWAL v. KESHAV KAUSHIK
415
[R.M. LODHA, J.]
Advocate General have been quashed holding that they did not
A
have the requisite criteria to qualify for the recruitment as
contemplated in Article 233 of the Constitution and that some
of the candidates did not have requisite experience.
6. Article 233 of the Constitution of India provides for
appointment of District Judges. It reads as follows:
8
"233. Appointment of district judges.-(1) Appointments of
persons to be, and the posting and promotion of, district
judges in any State shall be made by the Governor of the
State in consultation with the High Court exercising
C
jurisdiction in relation to such State.
(2) A person not already in the service of the Union or of
the State shall only be eligible to be appointed a district
judge if he has been for not less than seven years an
advocate or a pleader and is recommended by the High · o
Court for appointment."
7. Haryana Superior Judicial Service Rules, 2007 (for short,
'HSJS Rules') regulate the appointment of subordinate judges
in the State of Haryana. Part Ill of these Rules deals with method
of recruitment. Rules 5, 6 and 11 of the HSJS Rules are relevant
E
for the purposes of consideration of these appeals and they
read as under :
"R.5. Recruitment to the Service shall be made by the
Governor,-
(i) by promotion from amongst the Haryana Civil
Service (Juaicial Branch) in consultation with
the High Court; and
F
(ii)
by direct recruitment from amongst eligible
Advocates on the recommendations of the
G
High Court on the basis of the written and
viva voce test conducted by the High Court.
R.6. (1) Recruitment to the Service shall be made,-
(a) 50 per cent by promotion from amongst the Civil
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c
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SUPREME COURT REPORTS
[2013] 1 S.C.R.
Judges
(Senior
Division)/Chief
Judicial
Magistrates/Additional Civil Judges (Senior
Division) on the basis of principle of merit-cumseniority and passing a suitability test;
(b) 25 per cent by promotion strictly on the basis
of merit through limited competitive examination of
Civil Judges (Senior Division) having not less than
five years qualifying service as Civil Judges (Senior
Division)/Chief Judicial Magistrates/Additional Civil
Judges (Senior Division); and who are not less than
thirty five years of age on the last date fixed for
submission of applications for taking up the limited
competitive examinations; and
(c) 25 per cent of the posts shall be filled by direct
recruitment from amongst the eligible Advocates on
the basis of the written and viva voce test,
conducted by the High Court.
(2) The first and second post would go to category (a) (by
promotion on the basis of merit-cum-seniority), third post
would go to category (c) (direct recruitment from the bar)
and fourth post would go to category (b) (by limited
competitive examination) of rule 6, and so on.
R. 11. The qualifications for direct recruits shall be as
follows:
(a)
must be a citizen of India;
(b)
must have been duly enrolled as an Advocate and
has practiced for a period not less than seven
years;
G
(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
H provisions which have bearing in the matter and are relevant
DEEPAK AGGARWAL v. KESHAV KAUSHIK
417
[R.M. LODHA, J.]
for the purpose of these appeals. Section 2(u) of the Code of
A
. Criminal Procedure, 1973 (for short, 'Cr.P.C.') defines 'Public
Prosecutor' to mean any person appointed under Section 24
and includes any person acting under the directions of a Public
Prosecutor. Section 24 deals with 'Public Prosecutors'. It reads
as under:
B
"24. Public Prosecutors,- (1) For every High Court, the
Central Government or the State Government shall, after
consultation with the High Court, appoint a Public
Prosecutor and may also appoint one or more Additional
Public Prosecutors for conducting in such court, any
C
prosecution, appeal or other proceeding on behalf of the
Central Government or State Government, as the case
may be.
(2) The Central Government may_ appoint one or more
0
Public Prosecutors for the purpose of conducting any case
or class of cases in any district, or local area.
(3) For every district the State Government shall appoint
a Public Prosecutor and may also appoint one or inore
Additional Public Prosecutors for the district:
E
Provided that the Public Prosecutor or Additional Public
Prosecutor appointed for one district may be appointed
also· to be a Public Prosecutor or an Additional Public
Prosecutor, as the case may be, for another district.
(4) The District Magistrate shall, in consultation with the
Sessions Judge, prepare, a pan.el of names of persons,
who are, in his opinion fit to be appointed as Public
Prosecutors or Additional Public Prosecutors for the
district.
(5) No person shall be appointed by the State Government
as the Public Prosecutor or Additional Pu.blic Prosecutor
for the district unless his name appears in the panel of
names prepared by the District Magistrate under subsection (4).
F
G
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A
B
c
D
E
F
G
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SUPREME COURT REPORTS
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(6) Notwithstanding anything contained in sub-section (5),
where in a State there exists a regular Cadre of
Prosecuting Officers, the State Government shall appoint
a Public Prosecutor or an Additional Public Prosecutor only
from among the persons constituting such Cadre:
Provided that where, in the opinion of the State
Government, no suitable person is available in such Cadre
for such appointment that Government may appoint a
person as Public Prosecutor or Additional Public
Prosecutor, as the case may be, from the panel of names
prepared by the District Magistrate under sub-section (4).
Explanation - For the purposes of this sub-section,-
(a) "regular Cadre of Prosecuting Officers" means a Cadre
of Prosecuting Officers which includes therein the post of
a Public Prosecutor, by whatever name called, and which
provides for promotion of Assistant Public Prosecutors, by
whatever name called, to that post;
(b) "Prosecuting Officer" means a person, by whatever
name called, appointed to perform the functions of a
Public Prosecutor, an Additional Public Prosecutor or an
Assistant Public Prosecutor under this Code.
(7) A person shall be eligible to be appointed as a Public
Prosecutor or an Additional Public Prosecutor under subsection (1) or sub-section (2) or sub-section (3) or subsection (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."
DEEPAK AGGARWAL v. KESHAV KAUSHIK
419
[R.M. LODHA, J.]
(9) For the purposes of sub-section (7) and sub~section A
(8), the period during which a person has been in practice,
as a pleader,, .or has rendered (whether before or after the
commencement ofthis Code) service as a Public
Prosecutor or as an Additional Public Prosecutor or
Assistant Public Prosecutor or other Prosecuting Officer,
B
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
C
added to sub-section (6) of Section 24 with effect from
29.11.1985 which provides that for the purpose of sub-section
(6), the persons constituting the Haryana State Prosecution
Legal Service (Group A) or Haryana State Prosecution Legal
Service (Group B) shall be deemed to be a regular Cadre of D
Prosecuting Officers.
10. Section 25 Cr.P.C deals with Assistant Public
Prosecutors for conducting prosecutions in the court of
Magistrates. Section 25A was brought in the Cr.P.C. by Act 25
of 2005. It, inter alia, provides that the State Government may
E
establish a Directorate of Prosecution consisting of a Director
of Prosecution and as many Deputy Directors of Prosecution
as it thinks fit. Sub-section (5) of Section 25A makes a
provision that every Public Prosecutor, Additional Public
Prosecutor and Special Public Prosecutor appointed by the
F
State Government under sub-section (1) or under sub-section
(8) of Section 24 to conduct cases in the High Court shall be
subordinate to the Director of Prosecution. In terms of subsection (6) of Section 25A, every Public Prosecutor, Additional
Public Prosecutor and Special Public Prosecutor appointed by
G
the State Government under sub-section (3) or under subsection (8) of Section 24 to conduct cases in district courts and
every Assistant Public Prosecutor appointed under sub-section
(1) of Section 25 shall be subordinate to the Deputy Director
of Prosecution. Sub-section (8), however, clarifies that the
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[2013] 1 S.C.R.
A Advocate General for the State while performing the functions
of public prosecutor shall not be covered by Section 25A.
11. Section 2(7) of the Code of Civil Procedure, 1908 (for
short, 'CPC') defines 'government pleader'. According to this
provision, 'government pleader' includes any officer appointed
B by the State Government to perform all or any of the functions
expressly imposed by the CPC on the government pleader and
also any pleader acting under the directions of the government
pleader.
C
12. Section 2(15) CPC defines 'pleader' which means any
person entitled to appear and plead for another in court, and
includes an advocate, a vakil and an attorney of a High Court.
13. Prior to Indian Advocates Act, 1961, [The Indian] Bar
Councils Act, 1926 (for short, '1926 Act') dealt with the functions
o of the Bar Council and the admission and enrolment of
advocates. Section 2(1 )(a) of the 1926 Act had defined
'advocate' as meaning an advocate entered in the roll of
advocates of a High Court under the provisions of that Act.
E
F
G
H
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
'
DEEPAK AGGARWAL v. KESHAV KAUSHIK
421
[R.M. LODHA, J.]
person shall be enrolled as an advocate on the roll of more than
A
one State Bar Council. Section 24 provides for the eligibility
of the persons who may be admitted as advocates on Sta,te
roll. Inter alia, it states that a person shall be qualified to be
admitted as an advocate on a State roll if he fulfills such other
conditions as may be specified in the rules made by the State
B
Bar Council under Chapter Ill. Section 28 empowers a State
Bar Council to make rules to carry out the purposes of Chapter
Ill. Clause (d), sub-section (2) of Section 28 states that such
rules may provide for the conditions subject to which a person
may be admitted as an advocate on the State roll. Chapter IV c
of the 1961 Act deals with the right to practice. This Chapter
comprises of five sections. Section 29 provides that from the
appointed day, there shall be only one class of persons entitled
to practice profession of law, namely, advocates. Section 30
provides for right of advocates to practice. Section 33 makes
0
a provision that except as otherwise provided in the Act or in
any other law for the time being in force, no person shall on or
after the appointed day, be entitled to practice in any event or
before any authority or person unless he is enrolled as advocate
under the Act.
17. Section 49 gives power to the Bar Council of India to
make rules for discharging its functions and also to frame rules
E
in respect of the subjects enumerated in clauses (a) to 0).
Clause (ah) deals with the conditions subject to which an
advocate shall have the right to practice and the circumstances
F
under which a person shall be deemed to practice as an
advocate in a court. The first proviso following the main Section
provides that no rules made with reference to clause (c) or (gg)
shall have effect unless they have been approved by the Chief
Justice of India. The second proviso provides that no rules
G
made with reference to clause (e) shall have effect unless they
have been approved by the Central Government. Pursuant to
the power given under Section 49, the Bar Council of India has
framed the Bar Council of India Rules (for short, 'BCI Rules').
Rule 43 provides that an advocate, who has taken a full-time
H
service or part-time service or engaged in business or any
422
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A avocation inconsistent with his practising as an advocate, shall
send a declaration to that effect to the respective State Bar
Council within 90 days. On his failure to do so or in the absence
of sufficient cause for not doing so, he may face suspension
of licence to practice. Prior to 2001, Rule 49 of the BCI Rules
B read as under :
c
D
"49. An advocate shall not be a full-time salaried employee
of any person, government, firm, corporation or concern,
so long as he continues to practice, and shall, on taking
up any such employment, intimate the fact to the Bar
Council on whose roll his name appears, and shall
thereupon cease to practice as an advocate so long as
he continues in such employment.
Nothing in this rule shall apply to a Law Officer of the
Central Government or a State or of any Public
Corporation or body constituted by statute who is entitled
to be enrolled under the rules of his State Bar Council
made under Section 28(2)(d) read with Section 24(1)(e)
of the Act despite his being a full time salaried employee.
E
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
F 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:
G
"An advocate shall not be a full-time salaried employee of
any person, government, firm, corporation or concern, so
long as he continues to practice, and shall, on taking up
any employment, intimate the fact to the Bar Council on
whose roll his name appears, and shall thereupon cease
H
DEEPAK AGGARWAL v. KESHAV KAUSHIK
423
[R.M. LODHA, J.]
to practise as an advocate so long as he continues in such
A
employment".
19. The High Court has held, and in our view rightly, that
the consent of Chief Ju$tice of India was not needed because
rule in respect of eligibility is traceable to clause (ah). The
amendment thus became effective in any case on its publication
13
in the Government Gazette on 13.10.2001.
20. The High Court while considering the issue relating to
eligibility of the appellants for selection and appointment under
Article 233(2), dealt with Sections 17, 22, 24, 29 and 33 of the
C
1961 Act and Rule 49 of the BCI Rules and observed that an
advocate could not be a full-time salaried employee of any
. person, government, firm, corporation or concern so long as he
continues to practice.
21. The High Court referred to various decisions including o
decisions of this Court in Mundrika Prasad Sinha v. State of
Bihar1, Mukul Dalal and others v. Union of India and Others2,
Kumari Shrilekha Vidyarthi and Others v. State of U.P. and
. Others3, Chandra Mohan v. State of U.P. and Others", Satya
Narain Singh v. High Court of Judicature at Allahabad and
E
Others5, Sushma Suri v. Government of National Capital
Territory of Delhi and Another6, Satish Kumar Sharma v. Bar
Council of H.P. 7, Sunil Kumar Goyal v.