The Order of the Court was delivered by

A.K Patnaik, C.J:— The question which arises for decision in this writ petition is whether a Public Prosecutor or Assistant Public Prosecutor who has been an Advocate for not less than seven years is eligible for appointment by direct recruitment to the posts of District Judges (Entry Level) in the M.P Higher Judicial Service.

2. The relevant facts briefly are that the High Court of Madhya Pradesh issued an advertisement inviting applications for recruitment to twenty posts of District Judges (Entry Level) in the cadre of Higher Judicial Service by direct recruitment from the Bar. The advertisement stipulated, inter alia, that to be eligible for appointment to the post of District Judge (Entry Level) in the Higher Judicial Service by direct recruitment, the candidate must have practiced as an Advocate or Pleader for not less than seven years as on the 1st day of January, 2006. In response to the advertisement, the petitioner who was enrolled as an Advocate in the State Bar Council of Madhya Pradesh on 10-3-1992 and had practiced at Dewas as an Advocate till 12-8-2004 and then joined as Assistant Public Prosecutor at Dewas on 13-8-2004 and had continued as Assistant Public Prosecutor, applied. The application of the petitioner was however rejected by the Registrar General of the High Court of Madhya Pradesh on the ground that she was no longer an Advocate or Pleader being a full-time salaried employee of the Government and she was not eligible for recruitment to the post of District Judge (Entry Level) in the M.P Higher Judicial Service as per the eligibility criteria stipulated in the advertisement. Aggrieved, the petitioner has filed this writ petition under Art. 226 of the Constitution of India praying for writs/directions/orders quashing the communication dated 24-11-2006 of the Registrar General of the High Court of Madhya Pradesh and directing the respondents to accept her application and to permit her to appear in the examination scheduled to be held on 17-12-2006. On 6-12-2006, the Court while issuing notice in the writ petition to the respondent Registrar General, High Court of Madhya Pradesh passed an interim order that the petitioner be allowed to take the recruitment examination scheduled to be held on 17-12-2006 after complying with the formalities but the results of the petitioner will not be declared until further orders.

3. Thereafter on 29-3-2007, the Court modified the interim order and directed that in case the petitioner has qualified in the written examination, she will be called for interview but the final results will not be published until further orders. On 29-3-2007, the Court also passed orders directing that the State Government, represented by the Principal Secretary, Government of Madhya Pradesh, Department of Home, Bhopal will be impleaded as a respondent and further directing that the State Government in the Home Department will file an affidavit stating the nature of duties performed by Public Prosecutors/Assistant Public Prosecutors and Assistant District Public Prosecutors appointed under the M.P Public Prosecution (Gazetted) Services Rules, 1991.

4. Pursuant to the stay order dated 29-3-2007, an affidavit has been filed in W.P No. 18678 of 2006 (S) stating therein that Public Prosecutors, Assistant Public Prosecutors and Assistant District Public Prosecutors are appointed under sections 24 and 25 of the Code of Criminal Procedure, 1973 (for short “the Cr. P.C”) and they perform the duties in accordance with the said provisions of the Criminal Procedure Code besides other duties detailed in the order dated 25-1-1994 of the Director of Public Prosecution. A copy of the order dated 25-1-1994 has also been annexed to the affidavit and it appears from the copy of the order dated 25-1-1994 that Public Prosecutors, Assistant Public Prosecutors and Assistant District Public Prosecutors have to appear in different Criminal Courts and conduct cases on behalf of the State. Therefore, the question which falls for consideration in this writ petition is whether an Advocate who is enrolled as an Advocate with the State Bar Council under the Advocates Act, 1961 and has put in seven years of practice but has been appointed as Public Prosecutor or Assistant Public Prosecutor or Assistant District Public Prosecutor under the M.P Public Prosecution (Gazetted) Services Recruitment Rules, 1991 and appears and conducts cases on behalf of the State in Criminal Courts, is eligible for appointment as District Judge by way of direct recruitment.

5. Mr. Aditya Sanghi, learned counsel for the petitioner submitted that Art. 233(2) of the Constitution provides that a person not already in service of the Union or of the State shall only be eligible to be appointed as District Judge (Entry Level) if he has been for not less than seven years an Advocate or a Pleader and is recommended by the High Court for appointment. He submitted that keeping in view this provision in Art. 233(2) of the Constitution, the Supreme Court has held in Sushma Suri v. Government of National Capital Territory of Delhi, (1999) 1 SCC 330 that an Advocate employed by the Government or a body corporate as Law Officer even on terms of payment of salary would not cease to be an Advocate in terms of Rule 49 of the Bar Council of India Rules if the condition is that such Advocate is required to act or plead in the Courts on behalf of the employer. He submitted that in the present case since the petitioner, who is an Assistant Public Prosecutor by the nature of her duties is required to act and conduct cases on behalf of the State in the Criminal Courts, does not cease to be an Advocate on her being appointed as Assistant Public Prosecutor under the M.P Public Prosecution (Gazetted) Services Recruitment Rules, 1991 and therefore, she is eligible for appointment to the post of District Judge (Entry Level) in the M.P Higher Judicial Service. Mr. Sanghi also cited the judgment of the Division Bench of the Allahabad High Court in Sanjay Agrawal v. State of U.P, Civil Misc. Writ Petition No. 20016 of 2007 in which a similar view has been taken following the decision of the Supreme Court in Sushma Suri (supra) that the person who is enrolled as an Advocate under the Advocates Act, 1961 and has worked for seven years as such and thereafter appointed as Public Prosecutor/Assistant Public Prosecutor does not incur the disqualification under Art. 233(2) of the Constitution or the Advocates Act, 1961 or the Rules framed by the U.P State Bar Council under the Advocates Act, 1961 for consideration for appointment to the post of District Judge.

6. Mr. V.S Shroti, learned Senior Counsel appearing for the High Court, on the other hand, submitted that section 2(1) of the Advocates Act, 1961 defines ‘advocate’ to mean an advocate entered in any roll under the provisions of the Act. He submitted that under section 17 of the Advocates Act, 1961, every State Bar Council is required to prepare and maintain a roll of advocates in which the names and addresses of all persons who have been enrolled as advocate are entered. He further submitted that in Rule 49 of the Bar Council of India Rules, it is provided that an advocate shall not be a full time salaried employee, inter alia, of any Government so long as he continues to practice and shall on taking 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. He further submitted that prior to 22nd June 2001, there was a provision appended to Rule 49 that nothing in the rule shall apply to the Law Officer of the Central Government or the State Government, who is entitled to be enrolled under the Rules of State Bar Council under section 28(2)(d) read with section 24(1)(c) of the Act despite his being a full time salaried employee and that Law Officer for the purpose of this rule would mean a person who is so designated by the terms of his appointment and who by the said term is required to act and/or plead in Courts on behalf of his employer. Mr. Shroti submitted that the decision of the Supreme Court in Sushma Suri (supra) was delivered when this note under Rule 49 of the Bar Council of India Rules was in force and the Supreme Court took into consideration the aforesaid note and held that an advocate who is employed as a Law Officer and on the terms of his appointment is required to act and/or plead in courts on behalf of the employer, would not cease to be an advocate on his becoming such Law Officer and would be eligible for appointment to the post of District Judge under Art. 233(2) of the Constitution. He submitted that by a resolution dated 22nd June, 2001 of the Bar Council of India, this note appended to Rule 49 has been deleted and the result is that as soon as an advocate is employed as a full time salaried employee of the Government, he ceases to practice as an advocate so long as he continues in such employment as provided in Rule 49 of the Bar Council of India Rules. He argued that the view taken by the Registrar General of the M.P High Court in the impugned communication that the petitioner having been appointed as Assistant Public Prosecutor had ceased to be an advocate and was not eligible to be considered for recruitment to the post of District Judge in the M.P Higher Judicial Service, is, therefore, correct. In support of his submissions, Mr. Shroti cited the decisions of the Supreme Court in Baldev Singh Dhingra v. Madanlal Gupta, (1999) 2 SCC 745 and in Satish Kumar Sharma v. Bar Council Of H.P, (2001) 2 SCC 365. He also relied on the decision in Mallaraddi H. Itagi v. The High Court of Karnataka, 2002 Lab. I.C 2074 in which a Division Bench of the High Court has held that Assistant Public Prosecutors are not Advocates.

7. Article 233(2) of the Constitution is quoted hereinbelow:—

“233(1) xxxxxxxxx

(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed as 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.”

The language of Art. 233(2) of the Constitution of India is clear that a person who is not in the judicial service of the Union or the State would be eligible to be appointed as District Judge if he has been for not less than seven years an advocate or a pleader.

8. This provision in Art. 233(2) of the Constitution has been bodily lifted and incorporated in Rule 7(c) of the M.P Uchchtar Nyayik Sewa (Bharti Tatha Sewa Shartein) Niyam, 1994 which reads as follows:

“7. Qualification for direct recruitment: No person shall be eligible for appointment by direct recruitment unless—

(a) xxxxxxxxx

(b) xxxxxxxxx

(c) he has been for not less than seven years an Advocate or a Pleader.

(d) xxxxxxxxx”

9. section 2(1) of the Advocates Act, 1961 defines ‘advocate under clause (a) to mean an advocate entered in any roll under the provisions of the Act. section 17 of the Advocates Act, 1961, inter alia, provides that every State Bar Council shall prepare and maintain a roll of advocates in which all persons who are admitted as advocates will be enrolled. Section 24 of the Advocates Act, 1961 is titled “persons who may be admitted as advocates on a State roll” and states that subject to the provisions of the Act and the Rules made thereunder, a person shall be qualified to be admitted as an advocate on a State roll if he fulfils the conditions mentioned in clauses (a) to (f) therein. Under clause (e) of section 24, a person to be qualified to be admitted as an advocate on a State roll is required to fulfil such other conditions as may be specified in the rules made by the State Bar Council. Section 28(1) of the Advocates Act, 1961 confers power on the State Bar Council to make rules for carrying out the provisions of the Chapter and section 28(2) provides that in particular, and without prejudice to the generality of the power under section 28(1), such rules may provide for the matters specifically provided in clauses (a) to (e) of section 28(2) of the Advocates Act, 1961. Under clause (d) of section 28(2) of the Advocates Act, 1961, such rules made by the State Bar Council may provide for the conditions subject to which a person may be admitted as an advocate on the roll of the State Bar Council. In accordance with the powers under section 28(2)(d) read with section 24(1)(c) of the Advocates Act, 1961, the State Bar Council of M.P has framed rules titled “Sate Bar Council of Madhya Pradesh, Jabalpur Rules” and relevant portion of Rule 143 is quoted hereinbelow:

“143. A person who is otherwise qualified to be admitted as an Advocate but is either in full or part time service or employment or is engaged in any trade, business or profession shall not be admitted as an Advocate: Provided, however, that this rule shall not apply to:—

(i) Any person who is a Law Officer of the Central Government or the Government of a State or of any Public Corporation or body constituted by statute. For the purpose of this Clause a ‘Law Officer’ shall mean 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.”

10. It is clear from the main provision in Rule 143 of the State Bar Council of Madhya Pradesh, Jabalpur Rules, quoted above, that a person who is otherwise qualified to be admitted as an advocate but is either on full or part time service or employment, or is engaged in any trade, business or profession, shall not be admitted as an advocate. Proviso (i) under Rule 143 says that this rule shall not apply to any person who is a Law Officer of the Central Government or of a Government of the State or of any Public Corporation or body constituted by a statute and for the purpose of this clause, a Law Officer shall mean 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. It is thus amply clear that under the Rules made by the State Bar Council of M.P under section 28(2)(d) read with section 24(1)(e) of the Advocates Act, 1961, a Law Officer of Government of State is qualified to be admitted as an Advocate if by the terms of his appointment, he is required to act and/or plead in Courts on behalf of the State Government. Since Public Prosecutors, Assistant Public Prosecutors or Assistant District Public Prosecutors by the terms of their employment under the State have to appear and conduct cases on behalf of the State before the Criminal Courts, they do not become disqualified to be entered in the rolls of the State Bar Council as advocates and accordingly do not cease to be advocates on their becoming Public Prosecutors, Assistant Public Prosecutors or Assistant District Public Prosecutors.

11. This is what has been held by the Supreme Court in Sushma Suri (supra) in para 10 of the judgment as reported at page 336 of the SCC, which is quoted hereinbelow:

“10. Under Rule 49 of the Bar Council of India Rules, an advocate shall not be a full-time employee of any person, Government, Firm, Corporation or Concern and on taking up such employment, shall intimate such fact to the Bar Council concerned and shall cease to practise as long as he is in such employment. However, an exception is made in such cases of Law Officers of the Government and corporate bodies despite his being a full-time salaried employee if such Law Officer is required to act or plead in Court on behalf of others. It is only to those who fall into other categories of employment that the bar under Rule 49 would apply. 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 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. In that event the terms of engagement will not matter at all. What is of essence is as to what such Law Officer engaged by the Government does — whether he acts or pleads in Court on behalf of his employer or otherwise. If he is not acting or pleading on behalf of his employer, then he ceases to be an advocate. If the terms of engagement are such that he does not have to act or plead, but does other kinds of work, then he becomes a mere employee of the Government or the body corporate. Therefore, the Bar Council of India has understood the expression “advocate” as one who is actually practicing before Courts which expression would include even those who are Law Officers appointed as such by the Government or body corporate.”

12. Mr. Shroti is right in his submission that in the aforesaid judgment in Sushma Suri (supra), the Supreme Court relied on the exception provided in the note appended under Rule 49 of the Bar Council of India Rules that a Law Officer of the Central Government or the State Government or a body corporate would be entitled to be enrolled as an advocate despite his being a full time salaried employee if he is designated by the terms of his appointment to act and/or plead in Courts on behalf of the employer and that the exception in the note has been deleted by the Bar Council of India by resolution dated 22nd June, 2001. But in our considered opinion, this deletion of exception in the note appended to Rule 49 of the Bar Council of India Rules does not make any material difference. Rule 49 along with the note provided in the exception of the Bar Council of India Rules prior to the deletion of the note by resolution dated 22nd June, 2001 are extracted below:

“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.”

“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 the State Bar Council made under section 28(2)(d) read with section 24(1)(e) of the Act despite his being a full time salaried employee.

Law Officer for the purpose of the rule means a person who is so designed by the terms of appointment and who, by the said terms, is required to act and/or plead in Courts on behalf of his employer.”

13. A careful reading of the note provided in the exception states that nothing in Rule 49 of the Bar Council of India Rules shall apply to a Law Officer of the Central Government, State Government or a body corporate who is entitled to be enrolled under the rules of the State Bar Council under section 28(2)(d) read with section 24(1)(e) of the Advocates Act, 1961 despite his being a full time salaried employee. Hence, the exception to Rule 49 has been provided because of the provisions in the Rules of State Bar Council made under section 28(2)(d) read with section 24(1)(e) of the Advocates Act, 1961 for a Law Officer of the Central Government or the State Government or a body corporate to be admitted into the roll of the State Bar Council if he is required by the terms of his appointment to act and/or plead in Courts on behalf of his employer. In other words, if the rules made by the State Bar Council under section 28(2)(d) read with section 24(1)(e) of the Advocates Act, 1961 provide for admission as an advocate, enrolment in the State Bar Council as an advocate of a Law Officer of the Central Government or the State Government or a body corporate, who, by the terms of his employment, is required to act and/or plead in Courts on behalf of his employer, he can be admitted as an advocate and enrolled in the State Bar Council by virtue of the provisions of sections 24(1)(e) and 28(2)(d) of the Advocates Act, 1961 and the rules made thereunder by the State Bar Council and he does not cease to be an Advocate on his becoming such Law Officer of the Central Government, State Government or a body corporate. As we have seen, the State Bar Council of M.P has provided under Proviso (i) of Rule 143 that a Law Officer of the Central Government or a Government of State or a Public Corporation or a body constituted by a statute, who by the terms of his appointment, is required to act and/or plead in Courts on behalf of his employer, is qualified to be admitted as an advocate even though he may be in full or part time service or employment of such Central Government, State Government, public corporation or a body corporate. The position of law, therefore, has not materially altered after the deletion of the note contained in the exception under Rule 49 of the Bar Council of India Rules by the resolution of the Bar Council of India dated 22nd June, 2001.

14. The decision of the Supreme Court in Baldev Singh Dhingra v. Madanlal Gupta (supra) cited by Mr. Shroti has no application to the facts of the present case. In the aforesaid case, a person before his appointment as Judicial Officer was enrolled as an advocate and he had got his licence to practice suspended when he was appointed as judicial officer. In a departmental enquiry, he was found to be guilty of the misconduct of unbecoming of a judicial officer and on prosecution, he was found guilty of the offence punishable under section 5(1)(e) of the Prevention of Corruption Act and on the recommendation of the High Court, the State Government dismissed him from service. After dismissal from service, he was permitted to resume his practice as an advocate by the Chairman of the State Bar Council and a complaint was filed under section 35(1) of the Advocates Act, 1961 before the State Bar Council against him contending that in view of his misconduct, he cannot practice as an advocate and on these facts, the Supreme Court has held that the complaint was not maintainable against him for any misconduct which is not committed by him as practicing advocate. This decision has no relevance to the present case in which we are dealing with the question whether Public Prosecutors/Assistant Public Prosecutors/Assistant District Public Prosecutors who had been advocates before their appointment as such Law Officer in the State Government cease to be advocates even when they continue to act and/or plead cases in the Courts on behalf of the State Government.

15. In Satish Kumar Sharma v. Bar Council Of H.P (supra), the Supreme Court referred to its earlier decision in Sushma Suri (supra) and held that the test indicated in the said decision is whether a person is engaged to act or plead in a Court of law as an advocate and not whether such person is engaged on terms of salary or payment of remuneration and held that there was no indication in any of the appointment/promotion orders issued to the appellant in that case that he was to act or plead in Courts of law on behalf of the State Electricity Board except in a particular order dated 5-7-1984 and that the appellant was required to work in the Legal Cell of the Secretariat of the Board to whom different pay scales and seniority rules were applicable and he was given promotion on the basis of recommendations of the DPC and was amenable to the disciplinary proceedings and who was not mainly or exclusively employed to act or plead in Courts. This was a decision of the Supreme Court in a case in which the appellant was not found to be eligible by the terms of his appointment to act and/or plead on behalf of his employer in the Courts.

16. In Mallaraddi H. Itagi v. High Court of Karnataka (supra), Rule 2 of the Karnataka Judicial Services (Recruitment) Rules, 1983 read with the Schedule to the Rules prescribed that an applicant to be eligible to be considered for appointment as a District Judge must be, on the last date fixed for submission of the applications, enrolled as an advocate and must have so practiced for not less than seven years as on such date and the question before the Division Bench of the Karnataka High Court was that petitioners 1 to 9 in that case who had been appointed as Assistant Public Prosecutors were eligible to be considered for appointment as District Judges but the Division Bench held that petitioners 1 to 9 before the date of their appointment as Assistant Public Prosecutors had surrendered their certificates of practice to the Karnataka State Bar Council and that therefore after their appointment as Law Officers of the Company were not acting or pleading in Courts on behalf of the employer as per the terms of their appointment and were not eligible for being considered for appointment to the posts of District Judges and the decision of the Supreme Court in Sushma Suri (supra) was not applicable to the nine petitioners. In the facts of the present case, on the other hand, we have held that Public Prosecutors, Assistant Public Prosecutors and Assistant District Public Prosecutors are required by the terms of their appointment to appear and conduct cases on behalf of the State in Criminal Courts.

17. The Division Bench of the Allahabad High Court, on the other hand, has held in its judgment dated 15-6-2007 in Sanjay Agarwal v. State of U.P, Civil Misc. Writ Petition No. 20016 of 2007, following the decision of the Supreme Court in Sushma Suri (supra) that the petitioner who was enrolled as an advocate under the Advocates Act, 1961 and had worked for seven years as such and thereafter appointed as APP/APO cannot be disqualified only for the reason that he has been appointed as Prosecuting Officer even while working as APP/APO because he was required to discharge his duties by pleading cases on behalf of the State before the Courts of law.

18. In the result, we hold that if a person has been enrolled as an advocate under the Advocates Act, 1961 and has thereafter been appointed as Public Prosecutor/Assistant Public Prosecutor or Assistant District Public Prosecutor and by the terms of his appointment continues to conduct cases on behalf of the State Government before the Criminal Courts, he does not cease to be an Advocate within the meaning of Art. 233(2) of the Constitution and Rule 7(1)(c) of M.P Uchchatar Nyayik Sewa (Bharti Tatha Sewa Shartein) Niyam, 1994 for the purpose of recruitment to the post of District Judge (Entry Level) in the M.P Higher Judicial Service. The writ petition is accordingly allowed and the respondent No. 1 is directed to publish the results of the petitioner.

Writ petition allowed.