S.Parvatha Rao, J.:-
(1) The petitioner's application for appointment by direct recruitment to the post of district and sessions judge, grade - ii in the andhra pradesh state higher judicial service pursuant to the notification calling for applications dated 2 - 8 - 1996, was rejected. His representation dated 11 - 11 - 1996 was also rejected and the same was communicated to him by the 2nd respondent in his roc. No. 3608/96 - b. Spl. Dated 15 - 11 - 1996. The petitioner questions that rejection in this writ petition.
(2) Admittedly, the petitioner is now working as assistant public prosecutor at kalwakurthy in mahbubnagar district from 17 - 7 - 1996 under the control of directorate of prosecutor, government of andhra pradesh. He states that he is now actually undergoing training as assistant public prosecutor in the andhra pradesh police academy at hyderabad.
(3) In his affidavit in support of the writ petition he does not state that he is at present an advocate practising as such when he appl ied for appointment by direct recruitment to the post of district and sessions judge, grade - ii. He states that he had been an advocate and practised as an advocate for more than seven years. According to him, he enrolled as an advocate on 27 - 3 - 1987 on the rolls of the bar council of andhra pradesh and practised as an advocate at nizamabad from27 - 3 - 1987 to 4 - 5 - 1994 /. E. , for a little more than seven years; he was selected and appointed as district munsif by direct recruitment and served as such from 5 - 5 - 1994 to 16 - 7 - 1996 and also underwent the basic training course for district munsiffs at andhrapradesh judicial academy from november, 1994 to march, 1995; and he resigned and was relieved from the said office on 16 - 7 - 1996 at his request. As already stated above, he has been selected as assistant public prosecutor and working as such from the very next day from 17 - 7 - 1996. He forwarded his application dated 17 - 8 - 1996 pursuant to the notification dated 2 - 8 - 1996 (published on 7 - 8 - 1996 in the eenadu news paper) through the proper channel to the chief secretary to the government of andhra pradesh. He states that he did not receive the hallticket for the written test scheduled to be held on 24 - 11 - 1996, and that he made enquiries in the 2nd respondent office on 8 - 11 - 1996 about his hallticket, and that he was then told his application was rejected on 6 - 11 - 1996 and that the same was communicated to the address given by him in his application. The petitioner did not receive the same as he was undergoing training at the andhra pradesh police academy. He then made a representation dated 11 - 11 - 1996 to permit him to appear for the written examination for the posts of district and sessions judge, grade - ii. After referring to article 233 (2) of the constitution of india and the decisions of the supreme court in chandra mohan v. State of u. P. (1) air 1966 sc 1987 and satya narain singh v. High court of judicature, allahabad (2) air 1985 sc 308, the petitioner stated as follows in that representation:
". I most respectfully submit that i am not in judicial service on the date of application and it was sent through proper channel as per notification and i practised as an advocate for a period of seven years one month and seven days (i. E. , from27 - 3 - 1987tp4 - 5 - 1994) andhencei fulfilled the required qualifications and i may be provided an opportunity of getting appointment. It is therefore requested that your kind authority may be pleased to permit me to write the written examination forthe post of district and sessions judge, grade - ii in the ends of justice and equity. " this representation was addressed to the 2nd respondent. Through official memorandum dated 15 - 11 - 1996, the 2nd respondent informed the petitioner that "his request for permission to write the examination on 24 - 11 - 1996, has been considered by the high court and the same is rejected".
(4) From the facts narrated by the petitioner, it cannot be gainsaid that during the period he worked as district munsif as a member of the andhra pradesh state judicial service from 5 - 5 - 1994 to 16 - 7 - 1996, he did not continue or practise as an advocate nor was he a member of the bar. On 17 - 7 - 1996 he joined service of the state of andhra pradesh as an assistant public prosecutor and continued in the service of the state when he made his application on 17 - 8 - 1996 pursuant to the notification dated 2 - 8 - 1996. It is not his case that he joined the bar after 16 - 7 - 1996 before he put in his application. It follows, therefore, that the petitioner was not practising as an advocate and was not a member of the bar when he made his application and when it was rejected.
(5) The petitioner contends that he is qualified for appointment as district and sessions judge, grade - ii as per clause (2) of article 233 of the constitution of india, rule 3 of the andhra pradesh state higher judicial service rules ('h. J. S. Rules' for short) and para 3 (a) of the notification dated 2 - 8 - 1996. He also relies on para 7 of the notification which stated:
"those who are working under state/central government shall send their applications through appropriate officer"
. He submits that the qualification required of a candidate for applying forthe post of district and sessions judge, grade - ii is that he shall have not less than seven years standing at the bar as an advocate or a pleader. He submits that he satisfies that condition and, therefore, the rejection of his application is arbitrary, unreasonable and contrary to articles 14,16 and 233 of the constitution of india.
(6) The learned counsel for the petitioner takes us through the judgments rendered by constitution benches of the supreme court in the cases of chandra mohan (1 supra) and satya narain singh (2 supra). He submits that as per the law laid down by the apex court, it is not necessary that the petitioner should be continuing and practising as an advocate for appointment as district judge by direct recruitment, and that "if he has been for not less than seven years as an advocate or a pleader" that would be sufficient and that his application cannot be rejected on the ground that he is not an advocate practising at the bar.
(7) We find that neither chandra mohan nor satya narain singh support the petitioner. In chandra mohan's case (1 supra) , the supreme court has elaborately considered article 233 of the constitution in the context of u. P. Higher judicial service rules. Rules 9 to 12 of the said rules prescribing the qualifications of candidates for appointment to the higher judicial service of that state were not at issue. One question that arose in that case was whether the consultation prescribed under the said rules made by the governor under article 309 of the constitution of india satisfied the requirement of clause (1) of article 233. After discussing the various provisions in the said rules, the supreme court held that the high court was practically reduced to the position of a transmitting authority of the lists of the suitable candidates for appointment prepared by the selection committee constituted under the rules. The supreme court held that the consultation provided under the said rules did not satisfy the requirement of article 233 (1) of the constitution of lndia. The other questi on that arose was whether direct recruitment to the posts of district judges could be made from 'judicial officers'of the state who were not members of the judicial service; and, if that could be done, whether exclusion of the members of thejudicial service in the matter of direct recruitment offended articles 14 and 16 of the constitution; or, alternatively, the exclusion of the members of the judicial service in the matter of direct recruitment to the posts of district judges while permitting 'judicial officers' to be so recruited offended the said articles. The supreme court observed that these questions were of far reaching importance and queried as follows:
"can the governor, after the constitution, directly appoint persons from services other than the judicial service as district judges in consultation with the high court? can he appoint 'judicial officers' asdistrict judges?the expression 'judicial officers' is a misleading one. It is common case that they belong to the executive branch of the government, though they perform certain revenue and magisterial functions"
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The supreme court referred to article 233 and the setting of that article in the scheme of the constitution providing for an independent judiciary and separation of judiciary from the executive at all levels, including the lower levels of subordinate judiciary, which was mandated under article 50 of the directive principles of state policy, which
"simply stated, it means that there shall be a separate judicial service free from the executive control"
. With that background, referring to the setting of article 233, the supreme court stated the gist of articles 233 to 237 as follows:
"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. There are two sources of recruitment, namely (i) service of the union or of the state, and (ii) members of the bar. The said judges from the first source are appointed in consultation with the high court and those from the second source are appointed on the recommendation of the high court. But in the case of appointments of persons to thejudicial service other than as district judges they will be made by the governor of the state in accordance with rules framed by him in consultation with the high court and the public service commission. But the high court has control over all the district courts and courts subordinate thereto, subject to certain prescribed limitations."
(emphasis supplied). Proceeding further, the supreme court observed as follows:
"but the real conflict rests on the question whether the governor can appoint as district judges persons from services other than the judicial service; that is to say, can he appoint a person who is in the police, excise, revenue or such other service as a district judge? the acceptance of this position would take us back to the pre - independence days and that too to the conditions prevailing in the princely states. This would also cut across the well - knit scheme of the constitution and the principle underlying it, namely, the judiciary shall be an independent service. Article 233 (1) is nothing more than a declaration of the general power of the governor in the matter of appointment of district judges. It does not lay down the qualifications of the candidates to be appointed or denote the sources from which the recruitment has to be made. But the sources of recruitment are indicated in clause (2) thereof. Under clause (2) of article 233 two sources are given, namely, (i) persons in the service of the union or of the state, and (ii) advocate or pleader. Can it be said that in the context of chapter vi of part vi of the constitution 'the service of the union or of the state' means any service of the union or of the state? the setting viz. , the chapter dealing with subordinate courts, in which the expression 'the service' appears indicates that the service mentioned therein is the service pertaining to courts. Having defined 'judicial service' in exclusive terms, having provided for appointments to that service and having entrusted the control of the said service to the care of the high court, the makers of the constitution would not have conferred a blanket power on the governor to appoint any person from any service as a district judge. Xxx xxx xxx we, therefore, construe the expression 'the service' in clause (2) of article 233 as the judicial service"
,
(emphasis supplied) the supreme court further clarified the position keeping in view the historic perspective: what obtained in the preindependent days and the changes brought after independence, as follows:
"till india attained independence, the position was that district judges were appointed by the governor from three sources, namely (i) the indian civil service, (ii) the provincial judicial service, and (iii) the bar. But after india attained independence in 1947, recruitment to the indian civil service was discontinued and the government of india decided that the members of the newly created indian administrative service would not be given judicial posts. Thereafter district judges have been recruited only from either the judicial service or from the bar. There was no case of a member of the executive having been promoted as a district judge. If that was the factual position at the time the constitution came into force, it is unreasonable to attribute to the makers of the constitution, who had so carefully provided for the independence of the judiciary, an intention to destroy the same by an indirect method. What can be more deleterious to the good name of the judiciary than to permit atthe level ofdistrict judges, recruitment from the executive departments? therefore, the history of the services also supports our construction that the expression 'the service' in article 233 (2) can only mean the judicial service. For the aforesaid reasons, we hold that the rules framed by the governor empowering him to recruit district judges from the 'judicial officers' are constitutional and, therefore, for that reason also the appointment of respondents 5, 6 and 7 was bad."
(8) Studying what is laid in chandra mohan carefully, we find that the supreme court categorically held that in view of what was provided under clause (2) of article 233 appointment of district judges could be made only from two sources i. E. , (i) from judicial service, and (ii) from the bar. We also find that the supreme court firmly expressed against appointment of persons in the service of the union or of the state otherthanjudicial service as district judges by direct recruitment because that would go against preservation of independence of the judiciary and separation of the judiciary from the executive - which are the basic tenets of the constitution. Thus, as per the decision of the supreme court in chandra mohan (1 supra) , apart from judicial service, the only other source for appointment of district judges is advocates or pleaders i. E. , members of the bar, subject to two requirements: (a) they should have not less than seven years standing at the bar; and (b) they should be recommended by the high court for such appointment.
(9) A three judges bench of the supreme court reiterated that position in satya narain singh's case (2 supra) after analysing the decision in chandra mohan (1 supra). The question before the supreme court in that case was whether members of any subordinate judicial service could seek appointment as district judges by direct recruitment if they had completed seven years practice at the bar before joining the subordinate judicial service. While answering that question in the negative, the supreme court observed with reference to clause (2) of article 233 as follows:
"it is only in respect of the persons covered by the second clause that there is a requirement that a person shall be eligible for appointment as district judge if he has been an advocate or a pleader for not less than 7 years. In other words, in the case of candidates who are not members of judicial service they must have been advocates or pleaders for not less than 7 years and they have to be recommended by the high court before they may be appointed as district judges, while in the case of candidates who are members of a judicial service the 7 years rule has no application but there has to be consultation with the high court. A clear distinction is made between the two sources of recruitment and the dichotomy is maintained. The two streams are separate until they come together by appointment."
After referring to the discussion in chandra mohan's (1 supra) case on the two sources of recruitment, namely, (i) service of the union or of the state, and (ii) members of the bar, chinnappa reddy, j. , speaking for the three judges bench observed as follows:
"subba rao, c. J. , then proceeded to consider (in chandra mohan's case (1 supra)) whetherthe government could appoint as district judges persons from services other than the judicial service. After pointing out that article 233 (1) was a declaration of the general power of the governor in the matter of appointment of district judges and he did not lay down the qualifications of the candidates to be appointed or denoted the sources from which the recruitment had to be made, he proceeded to state, 'but the sources of recruitment are indicated in clause (2) thereof. Under clause (2) of article 233 two sources are given, namely, (i) persons in the service of the union or of the state, and (ii) advocate or pleader"
.
(emphasis supplied)
(10) This exposition of the decision of the supreme court in chandra mohan (1 supra) supports the view that persons in the service of the union or of the state other than in the judicial service cannot be considered for appointment as district judges under clause (2) of article 233 unless they continue to be members of the bar i. E. , as advocates or pleaders even while in such service. Even if they had put in not less than seven years at the bar before they joined such service, they will not be eligible for appointment as district judges if they ceased to be members of the bar on their joining service of the union or of the state. If that is not so, the result may well be that members ofthe administrative service, police service and other services of the union or of the state will become eligible and can apply for direct recruitment as district judges contending that they had been for not less than seven years as advocates or pleaders before joining such services. That would be going back to the pre - independent days as chief justice subba rao said, though there is now one safeguard: the high court may notrecommend them for appointment. Thus, according to one reading of chandra mohan (1 supra) and satya narain singh (2 supra) , appointment of district judges by direct recruitment can only be from the members of the bar i. E. , from among those who are actually practising the profession of law as advocates subject to the condition that they have been so practising for not less than seven years as advocates and they are recommended by the high court for appointment - there are no pleaders now because under section 29 of the advocates act, 1961 there is now "only one class of persons entitled to practice the profession of law, namely, advocates". *
(11) The other view, of course, is that clause (2) of article 233 permits also persons from services of the union or of the state otherthan judicial service to be appointed as district judges by direct recruitment if they had been for not less than seven years as advocates or as pleaders at some time or other even though they do not continue as members of the bar and are not practising the profession of law. If this view is taken, then those who had been advocates for seven years long back and had given up the profession of law and taken to other vocations like politics or business, or other professions like those of chartered accountants or company secretaries, or other services even will also be eligible for appointment as district judges by direct recruitment. Considering the functions and responsibilities of district judges in the judicial hierarchy and the imperatives of an independent judiciary and their onerous and specialist duties in the administration ofjustice we are not inclined to favour this view. Members of the profession in active practice will be acquainted with the latest developments in the multifarious laws of the land and will be intimately associated with the justice delivery system. In indian council of legal aid and advice v. Bar council of india (3) (1995) 1 scc 732, chief justice a. M. Ahmadi, speaking for a three judges bench of the supreme court, stated the expectations from the legal profession as follows: "it is generally believed that members of the legal profession have certain social obligations, e. G. , to render 'pro bono publico' service to the poor and the underprivileged. Since the duty of a lawyer is to assist the court in the administration of justice, the practice of law has a public utility flavour and, therefore, he must strictly and scrupulously abide by the code of conduct behoving the noble profession and must not indulge in any activity which may tend to lower the image of the profession in society". In all india judges' association v. Union of india (4) (1993) 4 scc 288 p. P. Sawant, j. , speaking for another three judges bench of the supreme court explained why it was necessary to select members of the judiciary from the practising members of the legal profession, as follows: "considering the fact that from the first day of his assuming office, the judge has to decide, among others, questions of life, liberty, property and reputation of the litigants, to induct graduates fresh from the universities to occupy seats of such vital powers is neither prudent nor desirable. Neither knowledge derived from books nor pre - service training can be an adequate substitute for the firsthand experience of the working of the court - system and the administration of justice begotten through legal practice. The practice involves much more than mere advocacy. A lawyer has to interact with several components of the administration of justice. Unless the judicial officer is familiar with the working of the said components, his education and equipment as a judge is likely to remain incomplete. The experience as a lawyer is, therefore, essential to enable the judge to discharge his duties and functions efficiently and with confidence and circumspection. " that is why chief justice subba rao in chandra mohan (1 supra) held that under article 233 (2) the bar was the other source which would prov ide the persons measuring up to the constitutional vision of the judiciary at the district level.
(12) However, we find that it is not necessary in the present case to resolve the issue between the two views referred to by us above because the h. J. S. Rules place the position beyond doubt so far as the petitioner is concerned. Even assuming that clause (2) of article 233 permits appointment as district judges those who had been advocates for not less than seven years but ceased to be advocates and are in other avocations or professions or services* the petitioner fails because he cannot cross another hurdle in his way. Appointments to district and sessions judge, grade - ii falling under category - ii of the andhra pradesh state higher judicial service are governed by the h. J. S. Rules made in exercise of the powers conferred by article 233 and the proviso to article 309 read with article 313 of the constitution of india. Rule 2 of h. J. S. Rules states that appointment to category - ii shall be made: (i) by transfer. (ii) by direct recruitment from the bar (emphasis supplied) rule 3 of h. J. S. Rules prescribe qualifications and is as follows: "a person for appointment to category - ii from bar: - (a) shall be an advocate or a pleader of not less than seven years standing at the bar; (b) must not have completed forty five years of age. (c) shall be of sound health and active habits and free from any bodily defect or infirmity which render him unfit for such appointment". 'shall be' in clause (a) of rule 3 has the same meaning as 'shall be' in clause (c) of that rule. 'shall be of sound health and active habits and free from any bodily defect' etc. , in clause (c) obviously means he should continue to be of sound health and active habits and free from any bodily defect etc. , - it is not enough if he was of sound health and active habits etc. , in the past though not so now. Similarly, 'shall be an advocate or a pleader' in clause (a) does not mean that he should have been an advocate or a pleader some time in the past though now: it means that he continue to be an advocate now. Interpreted this way, which according to us is a reasonable and sensible way, clause (a) of rule 3 requires two things: firstly, a person for such appointment should be an advocate or a pleader; he should also have standing at the bar of not less than seven years. Both these qualifications should be satisfied for considering a person for appointment as district and sessions judges, grade - ii 'from the bar'. In fact, rule 2 (ii) says 'by direct recruitment from the bar' (emphasis supplied). Appointment of a person' from the bar' in our view necessarily means appointment of a person actually practising as an advocate. A person who ceased to practice the profession of law cannot fall in this category of persons; he will not be an advocate. Interpreting the expression 'actual practice' in rule 9 of the jammu and kashmir civil services (judicial) recruitment rules, 1967, which required that a candidate for recruitment to that service must have put in at least two years' actual practice at the bar, the supreme court in madan lal v. State of j and k (5) (1995) 3 scc 486 held as follows: "a member of the bar can be said to be in actual practice for 2 years and more if he is enrolled as an advocate by the bar council concerned since 2 years and more and has attended law courts during that period. The words 'actual practice' as employed in rule 9 indicate that the advocate concerned must be available whole - time as a professional attached to the court concerned and must not be pursuing any other full - time avocation. " we are of the view that rules 2 and 3 of h. J. S. Rules providing for direct recruitment from the bar and the qualifications therefor clearly entail that for direct recruitment a person should be an advocate i. E. , should be practising the profession of law and should also have not less than seven years standing at the bar. The petitioner has not questioned the h. J. S. Rules. In our view, by restricting direct recruitment of district and sessions judges, grade - ii to those from the bar only, rules 2 (ii) and 3 do not conflict with article 233 (2) of the constitution.
(13) The learned counsel for the petitioner relies on the earlier judgment of the supreme court in rameshwar dayal v. State of punjab (6) air 1961 sc 816. That was also rendered by a constitution bench of the supreme court, s. K. Das, j. , speaking for the bench. The learned counsel relies on the following passage in that judgment:
"it is perhaps necessary to add that we must not be understood to have decided that the expression 'has been' must always mean what learned counsel for the appellant says it means according to the strict rules of grammar. It may be seriously questioned if an organic constitution must be so narrowly interpreted, and the learned additional solicitor general has drawn our attention to other articles of the constitution like article 5 (c) where in the context the expression has a different meaning. Our attention has also been drawn to the decision of the allahabad high court in mubarak mazdoor v. K. K. Banerji (7) air 1958 all. 323, where a different meaning was given to a similar expression occurring in the proviso to
sub - section (3) of section 86 of the representation of the peoples act, 1951. We consider it unnecessary to pursue this matter further because the respondents we are now considering continued to be advocates of the punjab high court when they were appointed as district judges and they had a standing of more than seven years when so appointed. They were clearly eligible for appointment under clause (2) of article 233 of the constitution."
From the above, it is clear that the supreme court left open the question regarding the meaning to be given to the expression 'has been'. We do not see how this passage supports the petitioner before us. In chandra mohan's case (1 supra) , the learned chief justice referred to rameshwar dayal (6 supra) and to the following passage in that case:
"article 233 is a self contained provision regarding the appointment of district judges. As to a person who is already in the service of the union or of the state, no special qualifications are laid down and under clause (1) the governor can appoint such a person as a district judge in consultation with the relevant high court. As to a person not already in service, a qualification is laid down in clause (2) and all that is required is that he should be an advocate or pleader of seven years' standing."
And he observed as follows:
"this passage is nothing more than a summary of the relevant provisions. The question whether 'the service' in article 233 (2) is any service of the union or of the state did not arise for consideration in that case nor did the court express any opinion thereon"
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In satya narain singh's case (2 supra) also, chinnappa reddy, j. , referred to rameshwar dayal (6 supra) and after quoting the above passage observed as follows:
"again dealing with the cases of harbans singh and sawhney it was observed, 'we consider that even if we proceed on the footing that both those persons were recruited from the bar and their appointment has to be tested by the requirements of clause (2) , we must hold that they fulfilled those requirements', clearly the court was expressing the view that it was in the case of recruitment from the bar, as distinguished from judicial service that the requirements of c lause (2) had to be fulfilled. We may also add here earlier the court also expressed the view,'. We do not think that clause (2) of article 233 can be interpreted in the light of the explanation added to articles 124 and 217"
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The main question that arose before the supreme court in rameshwar dayal (6 supra) was whether respondents 2 to 6 in that case were not qualified to be appointed as district judges on the ground that they were advocates or pleaders of a foreign court i. E. , high court of lahore (which went to pakistan) , and that they did not have seven years standing as advocates or pleaders entitle to appear and plead for another in a court in india. As regards respondents 2,4 and 5, the supreme court held that they had their names on the rolls of advocates of punjab high court before they were appointed as district judges and they were practising as advocates at the time when they were so appointed. The supreme court further held that their standing in the lahore high court could be counted by them when they were enrolled as advocates of high court of east punjab. As regards respondents 3 and 6, the supreme court held as follows:
"we consider that the combined effect of clause 6 of the high courts (punjab) order,
1947 and section 8 (2) (a) of the bar councils act, 1926, was this: from august 15,1947 to september 28,1948, they were recognized as advocates entitled to practise in the punjab high court and after september 28,1948, they automatically came on the roll of advocates of the punjab high court but had to pay a fee of rs. 10 to the bar council. They did not cease to be advocates at any time or stage after august 15,1947, and they continued to be advocates of the punjab high court till they were appointed as district judges. They also had the necessary standing of seven years to be eligible under clause (2) of article 233 of the constitution."
We are, therefore, of the view that this decision of the supreme court does not help the petitioner who is not practising the profession of law and is not an advocate.
(14) Mr. V. V. S. Rao, who took notice for the 2nd respondent, drew our attention to the judgment of a division bench of this court in g. P. Saxeena v. The state of a. P. And others (8) judgment dt. 24 - 7 - 1992 in w. P. No. 9209 of 1989. The petitioner in that writ petition sought a declaration that the 4th respondent in that case was not qualified or eligible for being considered for appointment as district and sessions judges, grade - ii. The contention raised on behalf of the petitioner in that case that only persons who were members of the bar at the time when they filed applications for appointment as district judges were eligible and qualified to be considered for appointment in terms of article 233 (2) of the constitution and, rule 3 of the rules, and that the 4th respondent was an employee of andhra bank at the time when he submitted his application on 25 - 7 - 1988, and, therefore, was not a member of the bar at the relevant time even though he had completed more than seven years of practice as an advocate. It was not disputed that the 4th respondent enrolled on 26 - 7 - 1976 and was practising as advocate till he was appointed on 1 - 3 - 1985 in the andhra bank. He further contended that the 4th respondent suspended his practice when he took up appointment as law officer in the andhrabank. It was not in dispute that the 4th respondent applied for appointment as district and sessions judge, grade - ii pursuant to the notification dated 26 - 8 - 1986 issued by the state government, and that h is case was considered by the high court and he was, in fact, recommended by the high court and was also appointed as district and sessions judge, grade - ii by direct recruitment in g. O. Ms. No. 320 dated 26 - 4 - 1990. The 4th respondent contended that he practised as an advocate till 28 - 2 - 1985 and on his appointment as law officer of andhra bank, he restricted his services as an advocate on behalf of that bank since 1 - 3 - 1985 and asserted that he did not suspend his practice and that his name was continued on the rolls of the andhra pradesh bar council. He relied on rule 49 of the bar council of india rules and rule 70 of bar council of andhra pradesh rules, which was almost in the same terms as rule 49 of the bar council of india rules, and contended that as he was appointed as law officer of the andhra bank, which was a pubfic corporation constituted under the banking companies (acquisition and transfer of undertakings) act, he was not required by the said rules to suspend his practice, and that an advocate who was appointed as law officer of the bank had only to restrict his practice in the sense of appearing and pleading only for the bank and no other client, and that, therefore, he continued to be an advocate and a member of the bar. The bench upheld that contention and held as follows:
"we see considerable force in this submission. It is obvious that rule 49 of the bar council of india
rules and rule 70 proviso of the a. P. Bar council rules have the effect of excluding an advocate from the obligation to intimate the fact of his full time salaried employment to the barcouncil, if he is so employed (as a law officer) by the central government or the government of a state or any public corporation or body constituted by statute. It is obvious that employment as a law officer in a public corporation constituted by a statute or the central or state government is not treated as a disqualification to be enrolled and continued as an advocate. If that be so, the 4th respondent is right in his submission that he had no obligation to suspend his practice; and no question therefore arises of his ceasing to be an advocate on the rolls or a member of the bar council of andhra pradesh."
On the facts of that case, the division bench in fact found that the 4th respondent was a practising advocate on the date when he applied for appointment and, in fact, was appointed as district and sessions judge, grade - ii. Moreover, in that case the 4th respondent was not in the service of the union or of the state, but he was employed as a law officer of the andhra bank. His application was considered by the high court and he was also recommended by the high court and, in fact, he was appointed as a district and sessions judge, grade - ii. It is only thereafter that his appointment was questioned. In the case before us, the petitioner is not a member of the bar and he is in full time service of the state and his representation has been rejected by the high court. Therefore, the facts of the present case are clearly different from the facts in g. P. Saxeena's case (8 supra). However, in g. P. Saxeena 's case (8 supra) , sivaraman nair, j. , speaking for the division bench, considered the meaning of the phrase 'has been' in article 233 (2) and did not agree with the view expressed by a learned single judge of bombay high court in sudhakar govindrao deshpande v. State of maharashtra (9) 1985 (3) slr 264, which is as follows:
"the phrase 'has been' is capable of two interpretations namely, (i) has been some time in the past, or (ii) has been in the immediate past denoting a continuous state from the past. Looking to the history of the
provisions contained in article 233 (2) and the context, in my view, the correct interpretation of article 233 (2) is that it refers to persons who have been advocates or pleaders and who continue to be so at the time of the appointment. The
provisions of rule 5 (2) of the bombay judicial service recruitment rules, 1956 are in consonance with the
provisions of article 233. Rules make it amply clear that only members of the bar who have practised as advocates or pleaders for not less than seven years in the high court or courts subordinate thereto are eligible for recruitment as district judges."
Sivaraman nair, j. , disagreed as follows:
"we are not persuaded to accept that proposition in view of the positive observations contained in the judgment of the supreme court in rameshwar dayal (6 supra). The supreme court held that a person who had been on the rolls for not less than seven years continue to be on such rolls inspite of suspension of practice and acceptance of employment elsewhere. Admittedly, if the 4th respondent had completed the required period of seven years, he was for the required period, an advocate on the rolls of the bar council of andhra pradesh. Even assuming that he had suspended his practice, we have to hold, in the light of rameshwar dayal (6 supra) that the 4th respondent continued to be on the rolls of the bar council as an advocate and has been so, for not less than seven years. Even otherwise, we are inclined to take the view that the alternative construction of 'has been' which the supreme court noted in rameshwar dayal (6 supra) fully justifies appointment of the 4th respondent"
.
He agreed with the view expressed by a full bench of allahabad high court 18n behariji dass v. Chandra mohan (10) air 1969 all. 594 wherein the contention that the expression 'has been' made it necessary that the person concerned must have been in active practice of an advocate or a pleader at the time of his selection as a district judge, was rejected and it was held that "in several cases persons have been appointed as high court judges some time after their retirement as district judges" and such appointments were never challenged and that "the position in article 233 (2) was similar to that under article 217 (2) (a) of the constitution.
(15) It is not necessary for us to probe further into this question because we are of the view that the observations of the division bench in g. P. Saxeena 's case (8 supra) on the meaning to be given to the phrase 'has been' are obiter because the 4th respondent in that writpetition was found to be continuing as a member of the bar and as a practising advocate though with limited practice after his appointment as law officer of the andhra bank and, therefore, it was not necessary to decide what the position would have been if the finding was otherwise. Moreover, we also find that the division bench proceeded on the basis of a concession as regards the scope of rule 3 of h. J. S. Rules. Sivaraman nair, j. , speaking for the bench observed as follows:
"while article 233 (2) provides that only a person who has been not less than seven years an advocate or a pleader is qualified for appointment as district judge, rule 3 of the special rules requires him to be an advocate or pleader of not less than seven years standing at the bar and the notification requires that he 'should be an advocate or a pleader of not less than 7 years standing at the bar. // is agreed that the effect of all these prescriptions is the same. The provision in rule 3 and the notification do not present any difficulty. The real question which arises relates to the import of the words 'has been an advocate or a pleader for not less than 7 years'"
.
(emphasis supplied) thus, the bench proceeded to consider the languageofclause (2) of article 233 on the basis that it conveyed the same as the language of rule 3 ofh. J. S. Rules. However, while considering the decision of the delhi high court in omar shanker sharma v. Delhi administration (11) 1989 slr 458, the division bench observed as follows:
"we also find that there is a perceptible difference in the rules which fell for consideration in omar shanker sharma (11 supra). Whereas the relevant requirement for recruitment as district judges in delhi higher judicial service (rule 7 - b) was 'by direct recruitment from the bar', rule 3 of the a. P. State higher judicial service special rules only provide that a person for appointment to category 2 from the bar 'shall be an advocate or a pleader of not less than seven years standing at the bar'. We feel that the qualification prescribed in the andhra pradesh rules only requires the candidate to be an advocate or a pleader who has not less than 7 years standing at the bar. The "further requirement which the delhi high court found to be essential, in addition to being an advocate viz. , that he shall also be a member of the bar, is totally absent in the rules with which we are concerned"."
With respect, we have to observe that the bench failed to notice rule 2 and the earlier part ofrule 3. Rule 2 states that appointment to category ii shall be made: (i) by transfer. (ii) by direct recruitment from the bar rule 23 deals with qualifications, which are prescribed as follows: a person for appointment to category - ii from bar: (a) shall be an advocate or a pleader of not less than seven years standing at the bar (b). (c). (emphasissupplied). Thus, there is no difference between rule 7 (b) of the delhi higher judicial service and rule 2 (a) (ii) of h. J. S. Rules. Therefore, the observation of the bench that
"further requirement which the delhi high court found to be essential, in addition to being an advocate viz. , that he shall also be a member of the bar, is totally absent in the rules with which we are concerned"
is not correct because the bench did not notice
rule 2 (a) (ii) and the earlier portion of rule 3. Thus, the said observation of the bench is per incuriam.
(16) In the light of the above discussion, we find that the petitioner is not qualified for appointmentto category - ii i. E. , district and sessions judge, grade - ii by direct recruitment as he is not from the bar and he is in the service of the state other than judicial service and, therefore, barred by rules 2 (ii) and 3 of the h. J. S. Rules. The writ petition is, therefore, dismissed.