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Sunanda v. High Court Of Judicature At Bombay
Judicial Opinion Summary (Per D.G. Karnik, J.)
Factual and Procedural Background
The petitioners seek quashing and setting aside of the proviso to clause (2) of an advertisement issued by the High Court of Bombay for appointment to the post of District Judges in Maharashtra. The impugned proviso provides that a full time salaried Public Prosecutor, Assistant/Additional Public Prosecutor, Law Officer of the Central Government or State Government or of any public corporation or body constituted by statute, shall not be eligible for the post of District Judge. The petitioners amended their writ petition to also directly challenge the proviso to Rule 5 of the Maharashtra Judicial Service Rules, 2008 (the "Rules"), which contains identical language.
The petitioners (six in number) are law graduates, assert they have been advocates for more than seven years, initially practised as advocates and thereafter served as Assistant Public Prosecutors (APPs). They assert that as APPs they plead and argue before courts and continue to practise as advocates. They submitted online applications in response to a High Court advertisement dated 18 February 2011, but the applications were not accepted because they were full time salaried APPs and deemed ineligible under the advertisement's proviso.
The petition challenges the proviso as being contrary to Article 233 of the Constitution of India. The petition was heard, interim relief was declined, service of Rule was waived by Mr. Jamdar for the respondent, and the Bench directed that the matter be placed before the Chief Justice for reference to a Larger Bench.
Legal Issues Presented
- Whether a full time salaried Public Prosecutor, Assistant/Additional Public Prosecutor, or a Law Officer of the Government or a statutory body who pleads and acts in court continues to be an "advocate" for the purposes of Article 233(2) of the Constitution of India and thereby is eligible for direct appointment as a District Judge after seven years of advocacy.
- Whether the proviso to clause 2(b) of the High Court advertisement and the proviso to Rule 5 of the Maharashtra Judicial Service Rules, 2008—which exclude full time salaried Public Prosecutors, Assistant/Additional Public Prosecutors, and certain Law Officers from eligibility—are contrary to Article 233(2) and therefore liable to be struck down or read down.
Arguments of the Parties
Petitioners' Arguments (as advanced by Mr. Anturkar)
- The petitioners relied primarily on the three-Judge Bench decision of the Supreme Court in Sushma Suri v. Govt. of NCT of Delhi, (1999) 1 SCC 330, to submit that full time Assistant Public Prosecutors who are required to act and plead in courts on behalf of the Government qualify as "advocates" within the meaning of Article 233(2).
- Accordingly, the proviso in the advertisement and to Rule 5 is contrary to Article 233(2) and should be declared null and void.
- In the alternative, the proviso should be read down so that it does not bar those full time salaried public prosecutors or law officers who are required to plead on behalf of the Government or statutory bodies; the bar should apply only to salaried law officers who act solely in an advisory capacity and do not plead in court.
Respondent High Court's Arguments (as advanced by Mr. Jamdar)
- The decision in Sushma Suri has been explained by the Supreme Court in a later decision, Mallaraddi H. Itagi v. High Court of Karnataka (Civil Appeals No. 947-956 of 2003, decided 18 May 2009), which the respondent relied on and submitted has no application to the present facts.
- Because the petitioners are employed as full time Assistant Public Prosecutors in the State of Maharashtra, they are not entitled to appointment as District Judges and their applications were rightly rejected by the High Court.
- The respondent also relied upon an unreported decision of the Bombay High Court in Ayub S. Pathan v. High Court of Bombay (Writ Petition No. 1849 of 2011, decided 3 March 2011) where the Principal Bench had dismissed a similar challenge and held that full time salaried Public Prosecutors form a different class and are not eligible for District Judge posts.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sushma Suri v. Govt. of National Capital Territory of Delhi, (1999) 1 SCC 330 | The Supreme Court held that an advocate employed by the Government or a body corporate as its law officer, even if salaried, does not cease to be an advocate under the Bar Council rule if he is required to act or plead in courts on behalf of the employer; the test is whether the person is engaged to act or plead in court on behalf of the employer. | The Court held that the petitioners' case is squarely covered by Sushma Suri, and relied on it to conclude that the question is res integra and requires reconsideration; Sushma Suri prompted the Bench to seek a Larger Bench. |
| Mallaraddi H. Itagi v. High Court of Karnataka (Civil Appeals No. 947-956 of 2003, decided 18 May 2009) | The Supreme Court in that case distinguished a factual situation where appellants had surrendered their licence to practice on entering service: surrender of licence to practice demonstrates they were not advocates and therefore ineligible. | The Court distinguished Mallaraddi H. Itagi on facts, explaining it had no application here because the petitioners have not surrendered their licence and averred that they plead and argue in court as APPs. |
| Ayub S. Pathan v. High Court of Bombay (Writ Petition No. 1849 of 2011, decided 3 March 2011) — (unreported) | The decision treated full time salaried Public Prosecutors as a different class and held them ineligible for appointment as District Judges under the advertisement of 18 February 2011. | The Bench noted that Ayub S. Pathan did not cite Sushma Suri and stated that the earlier decision requires reconsideration in light of Sushma Suri; the present Bench declined to follow Ayub S. Pathan and directed reference to a Larger Bench. |
Court's Reasoning and Analysis
The Court began with an analysis of Article 233 of the Constitution of India, which provides for appointment of district judges. The Court emphasized Article 233(2)'s phrasing — "has been for not less than seven years an advocate or a pleader" — and interpreted the present perfect tense to mean that the person must have practiced as an advocate for seven years prior and continue to be an advocate at the date of the advertisement/appointment.
The petitioners had averred (and this was not controverted) that they had more than seven years' experience as advocates and that, while serving as Assistant Public Prosecutors between 2002 and 2009 (and on the date of application and filing of the petition), they plead and argue before courts. The narrow legal question was thus whether, on the dates in question, they continued to be "advocates" within the meaning of Article 233.
The Court found the issue to be res integra and that it is covered by the Supreme Court's decision in Sushma Suri. The Sushma Suri ratio — that a salaried law officer does not cease to be an advocate if required to act or plead in court on behalf of the employer — was applied. The Court explicitly distinguished Mallaraddi H. Itagi because, in that case, the persons had surrendered their licence to practice, while the present petitioners had not and asserted they plead in court as APPs.
The Court noted that the decision in Ayub S. Pathan (which dismissed a similar challenge) had not cited Sushma Suri and therefore that decision required reconsideration. Given the conflicting views and the importance of the constitutional interpretation, the Bench concluded that the matter ought to be referred to a Larger Bench for authoritative determination.
Procedural actions taken by the Court in this hearing: the Court issued Rule, declined interim relief, Mr. Jamdar waived service of Rule, and directed the office to place the papers before the Chief Justice for reference to a Larger Bench.
Holding and Implications
Core Ruling: Rule — interim relief is declined; the petition is directed to be placed before the Chief Justice for reference to a Larger Bench.
Implications:
- Immediate procedural effect: the petitioners' request for interim relief was refused by the Bench hearing the matter.
- The Bench expressed the view that the question whether full time salaried public prosecutors or law officers who plead in court qualify as "advocates" under Article 233(2) requires authoritative determination by a Larger Bench, in light of the Supreme Court's decision in Sushma Suri and distinguishing decisions like Mallaraddi H. Itagi and the unreported Ayub S. Pathan.
- No final decision was made on the constitutional validity of the proviso to the advertisement or Rule 5; instead the matter is to be considered by a Larger Bench, so the case does not establish a new binding precedent from this Bench's decision.
JUDGMENT: (Per D.G Karnik, J.)
1. By this petition, the petitioners pray for quashing and setting aside the proviso to clause (2) of the advertisement issued by the High Court for appointment to the post of District Judges in the judicial service in the State of Maharashtra. The impugned proviso says that a full time salaried Public Prosecutor, Assistant/Additional Public Prosecutor, Law Officer of the Central Government or State Government or any public corporation or body constituted by the Statute, would not be eligible for the post of District Judge. When it was noticed that the proviso was incorporated in the advertisement in view of the proviso to Rule 5 of the Maharashtra Judicial Service Rules, 2008 (for short “the Rules”), the petitioners by amendment have also challenged the validity of the proviso to Rule 5.
2. The petitioners, six in number, are all law graduates and have experience as advocates for more than 7 years. Initially they were practicing as advocates and thereafter are serving as Assistant Public Prosecutors and claim to be practicing as advocates. As Assistant Public Prosecutors they plead and argue before the respective courts and claim to be eligible for the post of District Judge in the judicial service of the State of Maharashtra.
3. In pursuance of an advertisement dated 18 February 2011 issued by the High Court, the petitioners submitted online applications for being appointed as District Judges. The online forms of the petitioners, however, were not accepted on the ground that the petitioners were ineligible to apply in view of the fact that they were working as full time salaried Assistant Public Prosecutors and were ineligible for being appointed to the posts of District Judge. The advertisement dated 18 February 2011 issued by the High Court prescribes eligibility criteria for the post of District Judge. Apart from the criteria regarding citizenship and permanent residency, the advertisement provides that a candidate must be a holder of Degree in Law and practicing as an advocate in the High Court or Courts subordinate thereto for not less than seven years or must be working or must have worked as a Public Prosecutor or a Government Advocate for not less than seven years. Proviso to clause 2(b) of the advertisement provides that a full time salaried Public Prosecutor, Assistant/Additional Public Prosecutor, Law Officer of the Central Government or State Government or of any Public Corporation or Body constituted by Statute, would not be eligible for the post of District Judge. This proviso as well as proviso to Rule 5 of the Rules is impugned in the present petition. Proviso to Rule 5 reads as under:
“Provided that a full time salaried Public Prosecutor, Assistant/Additional Public Prosecutor, Law Officer of the Central Government or State Government or of any Public Corporation or Body constituted by Statute, shall not be eligible for the post of District Judge.”
The validity of the proviso is challenged on the ground that it is contrary to the provisions of Article 233 of the Constitution of India.
Submissions of the parties
4. Mr. Anturkar, learned counsel appearing for the petitioners, strongly relying upon a three Judge Bench decision of the Supreme Court in Sushma Suri v. Govt. of National Capital Territory of Delhi, (1999) 1 SCC 330, submitted that the petitioners, though employed as full time Assistant Public Prosecutors, were required to act and plead in the courts on behalf of the Government and as such were advocates within the meaning of Article 233(2) of the Constitution of India. The proviso in the advertisement and of the Rule 5 of the Rules being contrary to Article 233(2) of the Constitution was null and void and was required to be struck down. In the alternative, he submitted that the proviso must be read down to exclude the bar in respect of full time salaried Public Prosecutors or Assistant/Additional Public Prosecutors and other Law Officers of the Government and other statutory bodies who were required to plead on behalf of the Government or Public Statutory Corporations or Bodies. So read, the proviso would be applicable only in respect of the Public Prosecutors and other salaried employees of the State or other Public Corporations or Bodies constituted by a Statute where they were required only to act in an advisory capacity, giving advice to their employer and were not required or allowed to plead on behalf of the Government or Public Corporation or Bodies.
5. Per contra, Mr. Jamdar, learned advocate appearing for the respondent High Court, submitted that the decision in the case of Sushma Suri (supra) has been explained by the Supreme Court in its later decision in Mallaraddi H. Itagi v. the High Court of Karnataka (Civil Appeal No. 947-956 of 2003, decided on 18 May 2009), and has no application to the facts of the present case. He submitted that since the petitioners were employed as full time Assistant Public Prosecutors in the State of Maharashtra, they were not entitled to be appointed to the post of District Judge and their applications were rightly rejected by the High Court.
6. Mr. Jamdar also referred to and relied upon an unreported decision of this Court in Ayub S. Pathan v. High Court of Bombay (Writ Petition No. 1849 of 2011 decided on 3rd March 2011). In that case, the petitioners, who had obtained a Law Degree and were in service of Government of Maharashtra as salaried Public Prosecutors, had challenged the very advertisement dated 18th February 2011 before the Principal Bench of this Court. Before this petition which was filed at Aurangabad Bench was called at and heard by the Principal Bench at Mumbai, this Court dismissed the petition of Ayub S. Pathan, holding that the Public Prosecutors who are in full time employment form a different class and, therefore, not eligible for being considered for the post of District Judge. It is submitted that the petition deserves to be dismissed summarily.
7. In our view, the said decision requires reconsideration for the reasons indicated below.
8. Article 233 of the Constitution of India provides for appointment of District Judges and reads as under:
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.”
Article 233 of the Constitution of India contemplates appointment to the post of District Judge from two sources. The first source is by way of promotion of the subordinate judges working in the districts. The second source, which is commonly known as direct recruitment, is to be made from practicing advocates of not less than seven years standing as an advocate or a pleader. Article 233(2) uses the present perfect tense by using the expression “has been” before the words “for not less than seven years an advocate or a pleader”. The present perfect tense contemplates something which has happened in the past and continues to the present, that is to say that a person has been enrolled and practicing as an advocate in the past for seven years and presently continues to be an advocate. Article 233(2) contemplates that the person who has been practicing as an advocate for seven years or more and continues to be an advocate on the date of the advertisement/appointment would be eligible for appointment as a District Judge.
9. There is no dispute that the petitioners were enrolled as advocates more than seven years ago. In paragraph 3 of the petition they have asserted that they have experience as advocates for more than seven years and this fact has not been controverted. They were appointed as Assistant Public Prosecutors between the years 2002 and 2009 and on the date of the application as also on the date of filing of the petition they were serving as Assistant Public Prosecutors. The only question, therefore, that arises for our consideration is whether on the date of their applications and on the date of the petition they continued to be advocates to be eligible for appointment as District Judge under Article 233 of the Constitution of India. In our view, the issue is res integra and is covered by the decision of the Supreme Court in the case of Sushma Suri (supra).
10. In the case of Sushma Suri, the appellant before the High Court had passed the examination of Advocate-on-Record conducted by the Supreme Court of India in the year 1982 and in 1986 was appointed as an Assistant Government Advocate. Thereafter she was promoted to the post of Additional Government Advocate in the Supreme Court. In pursuance of an advertisement of the High Court of Delhi, she applied for the post of District Judge claiming that she had the experience of not less than seven years as an advocate. She was not called for interview. She filed a petition in the High Court which was rejected. On her appeal, the Supreme Court examined the question whether the appellant was an advocate for the purpose of Article 233 of the Constitution of India as envisaged by Rule 7 of the Delhi Higher Judicial Service Rules, 1917. Referring to Rule 49 framed by the Bar Council of India, the Supreme Court held that albeit Rule 49 provides that an advocate shall not be a full time salaried employee of any person, Government, firm, corporation or concern, but it carves out an exception in case of Law Officers of the Government or statutory corporate bodies and despite he being in the full time salaried employment if such Law Officer is required to act or plead in Court. The Supreme Court specifically held:
“An advocate employed by the Government or a body corporate as its law officer even on terms of payment of salary would not cease to be an advocate in terms of Rule 49 if the condition is that such advocate is required to act or plead in courts on behalf of the employer. The test, therefore, is not whether such a person is engaged on terms of salary or by payment of remuneration, but whether he is engaged to act or plead on its behalf in a Court of law as an advocate.”
(emphasis supplied)
11. In our view, the case of the petitioners is squarely covered by the decision of the Supreme Court in the case of Sushma Suri (supra). The later decision of the Supreme Court in the case of Mallaraddi H. Itagi (supra) has no application to the facts of the present case. In that case, the appellants before the Supreme Court had surrendered their licence to practice before the Bar Council when they entered the service. The Supreme Court held that the fact that they had surrendered their licence to practice before the Bar Council was clearly indicative of the fact that they were not advocates and as such were not eligible for being considered for appointment as District Judges. The decision is clearly distinguishable on facts because in the present case the petitioners have averred, and which fact is not controverted so far, that as Assistant Public Prosecutors they plead and argue before the respective courts.
12. The decision in the case of Sushma Suri (supra) was not cited before the Division Bench which decided the case of Ayub S. Pathan.
13. Hence the following order:-
Rule. Interim relief is declined.
Mr. Jamdar waives service of Rule.
Since we are inclined to take a view different than the view taken by the earlier Division Bench in light of the decision of the Supreme Court in Sushma Suri v. Govt. of National Capital Territory of Delhi, (1999) 1 SCC 330, the matter is required to be heard by a Larger Bench. Office is accordingly directed to place the papers before the Hon'ble the Chief Justice on the administrative side for reference to a Larger Bench.
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