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Sushma Suri v. Govt. Of National Capital Territory Of Delhi And Another
Factual and Procedural Background
The Delhi High Court issued an advertisement inviting advocates with not less than seven years’ standing to apply for direct recruitment to the Delhi Higher Judicial Service. The appellant, Mrs. Sushma Suri, who was enrolled as an advocate, had: (i) passed the Supreme Court Advocate-on-Record examination in 1982; (ii) been appointed Assistant Government Advocate in 1986; and (iii) subsequently promoted as Additional Government Advocate in the Supreme Court of India.
Despite these credentials she was not called for interview. She filed a writ petition under Article 226 of the Constitution before the Delhi High Court. Relying on its earlier judgment in Oma Shanker Sharma v. Delhi Administration (CWP No. 1961 of 1987) — a view that had been left undisturbed in a subsequent special-leave petition — the High Court held that a Government law officer is not “from the Bar” within the meaning of Article 233(2) and Rule 7 of the Delhi Higher Judicial Service Rules, 1970, and therefore rejected her claim. Mrs. Suri appealed to the Supreme Court.
Legal Issues Presented
- Whether a full-time law officer such as a Public Prosecutor, Government Advocate, Standing Counsel of a corporation or similar employee, who is enrolled with a State Bar Council and required to act or plead in court, qualifies as an “advocate” under Article 233(2) of the Constitution of India.
- Consequently, whether such a law officer is eligible for direct recruitment “from the Bar” under Rule 7 of the Delhi Higher Judicial Service Rules, 1970.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Oma Shanker Sharma v. Delhi Administration (Delhi HC, CWP No. 1961 of 1987) | Held that Government law officers are not members of the Bar for purposes of Article 233(2). | The Supreme Court found this reasoning “too pedantic” and expressly disapproved it, holding that law officers who plead in court remain advocates. |
| Chandra Mohan v. State of U.P. AIR 1966 SC 1987 | Interpreted “service” in Article 233 to mean “judicial service.” | Cited to show that Mrs. Suri was not in judicial service; therefore her eligibility hinged solely on being an advocate. |
| Satya Narain Singh v. High Court of Judicature at Allahabad (1985) 1 SCC 225 | Reaffirmed that “service” in Article 233(2) refers to judicial service. | Relied upon for the same proposition as Chandra Mohan, distinguishing judicial service from other government employment. |
| All India Judges’ Association v. Union of India (IA No. 32 of 1995 in RP No. 248 of 1994 in WP (C) No. 1022 of 1989, decided 10-5-1995) | Clarified that experience of practice as an advocate includes appearance for an employer-client. | Used to support the view that salaried law officers who act or plead in court continue to “regularly practise” as advocates. |
Court's Reasoning and Analysis
The Court began by examining Article 233(2) of the Constitution alongside Rule 7 of the Delhi Higher Judicial Service Rules, 1970. To determine the meaning of “advocate,” it turned to Section 2(a) of the Advocates Act, 1961, and Rule 49 of the Bar Council of India Rules.
Rule 49 generally bars a full-time salaried employee from practising, but expressly exempts “law officers” of the Government or statutory corporations who are required to act or plead in court. The Court held that:
- An advocate who only performs non-litigious duties as an employee ceases to practise and therefore is not an “advocate.”
- Conversely, a law officer who remains on the Bar roll and is obliged to act or plead in court continues to be an advocate, irrespective of receiving a salary.
Applying All India Judges’ Association, the Court emphasised that the constitutional objective of Article 233(2) is to recruit experienced practitioners; excluding Government law officers who appear in court would unduly narrow the talent pool.
The Court criticised the Delhi High Court’s reliance on Oma Shanker Sharma as overly technical and inconsistent with both the Advocates Act and the purpose of Article 233. It concluded that “from the Bar” merely denotes advocates practising in courts, a category that includes Public Prosecutors, Government Advocates, and similar law officers.
Holding and Implications
HELD: Law officers who are enrolled advocates and required to act or plead in court are “advocates” for the purposes of Article 233(2) and are eligible for direct recruitment to the Higher Judicial Service. However, because the impugned recruitment process had already concluded and the selected candidates were not parties before the Court, no individual relief could be granted to the appellant.
Implications: The decision overturns the restrictive interpretation adopted in Oma Shanker Sharma and directs all future and pending recruitment processes nationwide to treat qualified Government law officers as eligible “advocates.” Although no appointments were disturbed, the ruling broadens the pool of candidates for Higher Judicial Service and provides authoritative guidance on the statutory status of salaried law officers.
S. Rajendra Babu, J.—
Civil Appeal No. 3021 of 1997
1. The appellant responded to an advertisement issued by the High Court of Delhi inviting applications from candidates who have practised as advocates for recruitment to the Delhi Higher Judicial Service claiming that she had put in experience for not less than seven years as an advocate at the time of filing the application. In 1982 Mrs Sushma Suri passed the examination of Advocate-on-Record conducted by the Supreme Court of India and in 1986 she was appointed as Assistant Government Advocate. Thereafter she was promoted to the post of Additional Government Advocate in the Supreme Court of India. When she was not called for interview, she filed a petition in the High Court under Article 226 of the Constitution. The High Court relying on a Division Bench decision of the same Court in Oma Shanker Sharma v. Delhi Admn. CWP No. 1961 of 1987 decided on 13-1-1988 as affirmed by this Court in SLP (C) No. 3088 of 1988 held that the petitioner is not entitled to be considered for appointment. Hence this appeal.
2. The High Court in Oma Shanker Sharma case CWP No. 1961 of 1987 held that there are two sources of recruitment to the Delhi Higher Judicial Service namely, (i) officers in the Delhi Judicial Service and (ii) advocate or pleader of not less than seven years' standing. The petitioner therein being in the service of the Union Administration could not fall under the first category nor could he be treated as an advocate since the law officers of the Government such as Public Prosecutors/Government Counsel may not cease to be advocates for purposes of the Advocates Act but yet they are not members of the Bar. On that basis the claim of the petitioner therein was denied. In the special leave petition against that order, this Court held that the appellant being a Public Prosecutor was in the service of the Union Territory and as such was not eligible to be considered for appointment in the Delhi Higher Judicial Service. However whether such Public Prosecutor would be an advocate was not considered by this Court in that decision. The stand of the parties in these cases is identical as in Oma Shanker Sharma case CWP No. 1961 of 1987. Hence we wish to examine the correctness of the view expressed by the High Court as to whether a Public Prosecutor/Government Counsel/Standing Counsel of any corporation or authority would cease to be an advocate for the purpose of Article 233(2) of the Constitution so as not to belong to the Bar.
3. The rules of recruitment have been framed under the proviso to Article 309 of the Constitution known as the Delhi Higher Judicial Service Rules, 1970 (hereinafter referred to as “the Rules”). Rule 5 thereof provides for the mode of recruitment. The recruitment of persons to the service shall be made by the Administrator in consultation with the High Court. In regard to the persons not already in the Delhi Judicial Service, appointment to service shall be made by the Administrator on the recommendations to be made by the High Court. Rule 7 pertains to regular recruitment and provides that persons who had been recruited and promoted on the basis of selection from members of the Delhi Judicial Service, who have completed not less than ten years of service in the Delhi Judicial Service and by direct recruitment from the Bar provided that not more than one-third of the posts in the service shall be held by direct recruits. Obviously, this Rule has been framed to be in conformity with Article 233 of the Constitution. Article 233(1) thereof provides for appointments of persons who are already in service while Article 233(2) provides that a person not already in service is eligible for appointment if he has been for not less than seven years an advocate or a pleader and is recommended for the purpose by the High Court. Referring to the expression “service” in Article 233(2) it has been held by this Court in Chandra Mohan v. State of U.P AIR 1966 SC 1987, (1967) 1 LLJ 412 and Satya Narain Singh v. High Court of Judicature at Allahabad (1985) 1 SCC 225, AIR 1985 SC 308 that it means “judicial service”. However, it is not the contention either before the High Court or before us that the appellant is in judicial service. On the other hand the contention is that she has more than seven years' experience as an advocate and, therefore, is fully eligible to be appointed to the Higher Judicial Service and the High Court was not justified in not considering her case for appointment. Hence we have to examine the only question whether the appellant is an “advocate” for the purpose of Article 233(2) of the Constitution and “from the Bar” as envisaged in Rule 7 of the Rules.
4. We have to ascertain the meaning of the expression “advocate or a pleader” used in Article 233(2) of the Constitution and to do so we may use the Advocates Act and the Rules framed by the Bar Council. Under Section 2(a) of the Advocates Act, “advocate” means advocate entered in any roll under the provisions of the Act.
5. Rule 49 framed by the Bar Council reads as follows:
“An advocate shall not be a full-time salaried employee of any person, Government, firm, corporation or concern, so long as he continues to practise and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears, and shall thereupon cease to practise 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 of a State or of any public corporation or body constituted by statute who is entitled to be enrolled under the rules of his State Bar Council made under Section 28(2)(d) read with Section 24(1)(e) of the Act despite his being a full-time salaried employee.
Law officer for the purpose of this Rule means a person who is so designated by the term of his appointment and who, by the said term, is required to act and/or plead in courts on behalf of his employer.”
6. If a person on being enrolled as an advocate ceases to practise law and takes up an employment, such a person can by no stretch of imagination be termed as an advocate. However, if a person who is on the rolls of any Bar Council is engaged either by employment or otherwise of the Union or the State or any corporate body or person practises before a court as an advocate for and on behalf of such Government, corporation or authority or person, the question is whether such a person also answers the description of an advocate under the Act. That is the precise question arising for our consideration in this case.
7. This Court in All India Judges' Assn. v. Union of India IA No. 32 of 1995 in RP No. 248 of 1994 in WP (C) No. 1022 of 1989 decided on 10-5-1995 held that:
“There is no doubt in our minds that what was intended by the provision was that a candidate for appointment to judicial office should be a person who had three years' experience of practice as an advocate. He must be a lawyer in the sense that he regularly practises before a court or tribunal, who appears for his clients before the court or tribunal. It may be that in a given case he may do so only for a client who is his employer.”
8. For purposes of the Advocates Act and the Rules framed thereunder the law officer (Public Prosecutor or Government Counsel) will continue to be an advocate. The intention of the relevant Rules is that a candidate eligible for appointment to the Higher Judicial Service should be a person who regularly practises before the court or tribunal appearing for a client.
9. In Oma Shanker Sharma case CWP No. 1961 of 1987 the Delhi High Court approached the matter in too pedantic a manner losing sight of the object of recruitment under Article 233(2) of the Constitution. Whenever any recruitment is conducted to fill up any post, the area of recruitment must be as broad-based as the Rules permit. To restrict it to advocates who are not engaged in the manner stated by us earlier in this order is too narrow a view, for the object of recruitment is to get persons of necessary qualification, experience and knowledge of life. A Government Counsel may be a Public Prosecutor or Government Advocate or a Government Pleader. He too gets experience in handling various types of cases apart from dealing with the officers of the Government. Experience gained by such persons who fall in this description cannot be stated to be irrelevant nor detrimental to selection to the posts of the Higher Judicial Service. The expression “members of the Bar” in the relevant Rule would only mean that particular class of persons who are actually practising in courts of law as pleaders or advocates. In a very general sense an advocate is a person who acts or pleads for another in a court and if a Public Prosecutor or a Government Counsel is on the rolls of the Bar Council and is entitled to practise under the Act, he answers the description of an advocate.
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 practising before courts which expression would include even those who are law officers appointed as such by the Government or body corporate.
11. If that be the true position, we fail to understand how the object of recruitment could be defeated if these persons are also allowed to participate in the recruitment process. None of the decisions referred to in Oma Shanker Sharma case CWP No. 1961 of 1987 has examined the matter in this perspective. Either those decisions were concerned with the distinction between service and judicial service or the meaning of the expression “advocates” in other contexts. We think it is in this manner that the expression used in Article 233(2) of the Constitution has to be understood and the Rules framed by the Delhi Administration in this regard have to be read in the light of the constitutional provisions. The expression used “from the Bar” would only mean from the class or group of advocates practising in courts of law. It does not have any other attribute.
12. On the above analysis made by us, we think that the view taken by the High Court cannot be upheld.
13. However, we are not in a position to give any relief to the appellant before us now because when she commenced this litigation, recruitment process was still going on and it has gone too far ahead. Now that the same is complete and the selected candidates have already been appointed and they have reported for duty at different places and they are not impleaded as parties in these proceedings, it would not be proper to upset such appointments. All that we can now do is to direct the authorities concerned including the High Court and Government to process the applications for recruitment of candidates in future in the light of the position as explained above. If there are any pending recruitments, the view taken by us shall be applied to them also. The appeal, therefore, stands disposed of in the manner stated above.
Civil Appeals Nos. 3022 and 3023 of 1997
14. These two matters arise out of a common order which was the subject-matter of Civil Appeal No. 3021 of 1997 which we have disposed of just now. Following the decision and for the reasons stated therein, these appeals also stand disposed of in the same terms as set forth therein.
Civil Appeals Nos. 8359 and 8360 of 1997
15. These appeals arise out of a common order made by the High Court of Judicature at Allahabad on 26-8-1997 in Civil Miscellaneous Writ Petitions Nos. 37519 and 37059 of 1996 on identical considerations as available in the order made by the High Court of Delhi in Writ Petition No. 286 of 1997 which was the subject-matter of Civil Appeal No. 3021 of 1997. Following the said decision and for the reasons stated therein, these appeals also stand disposed of in the same terms as set forth in that case.
Writ Petition (Civil) No. 189 of 1997
16. In this writ petition under Article 32 of the Constitution, the petitioner seeks for a direction to consider his candidature for appointment to the Higher Judicial Service in the National Capital Territory of Delhi. We have examined the relevant rules and passed an order in Civil Appeal No. 3021 of 1997. Following the order made therein, this writ petition stands disposed of in the same terms as set forth in CA No. 3021 of 1997.
Writ Petition (Civil) No. 2 of 1998
17. In this writ petition under Article 32 of the Constitution, the petitioner is seeking for a direction to consider his candidature for appointment to the Higher Judicial Service in the State of Rajasthan. We have examined the position of similar claims and declared the law in the matter. If the petitioner satisfies the conditions thereto, he may place necessary material before the authority concerned. We hope the same would be examined in the light of the decision rendered by us in Civil Appeal No. 3021 of 1997. Subject to what is stated above, this writ petition is disposed of.
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