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Case Number

Writ Petition No. 1223 of 1981

Advocates

— D.K Ghaisas.
— S.M Shah.

Judges

Sujata V. Manohar, J.

Acts

section 246(1) and section 251 of the Government of India Act, 1935 the Secretary of State for India framed rules styled Reserved Posts (Indian Civil Service) Rules, 1938.
provisions of Article 234 of the constitution or Article 309 of the Constitution. Now, Article 234 of the Constitution
Article 233(2). 12. The provisions of Rule 5(2) of the Bombay Judicial Service Recruitment Rules, 1956
provisions of that Article along with Articles 234, 235, 238 and 257 of the Constitution
provisions of section 86(3) of the Representation of the People Act, 1951. Section 86
provisions of Article 233 and the Bombay Judicial Service Recruitment Rules, 1956.
Rule 5(2) of the Bombay Judicial Service Recruitment Rules, 1956 and Article 233
provisions of Rule 5(2) of the Bombay Judicial Service Recruitment Rules, 1956
Article 309. The Bombay Judicial Service Recruitment Rules, 1956
Bombay Judicial Service Recruitment Rules of 1956,
Article 233(1) of the Constitution, the said rules
Rule 5(2) with Article 233(2) of the Constitution
Bombay Judicial Service Recruitment Rules, 1956.
Bombay Judicial Services Recruitment Rules
Provisions of Article 233 and Rule 5(2)
provisions contained in Article 233(2)
provisions of this Constitution, Acts
SECTION 57 BOMBAY POLICE ACT
provisions of Article 233. Rules
provisions of Rule 5(2)(i)(b)
BOMBAY POLICE ACT 1951
Sub-rule (2) of Rule 5
sub-rule 2(i)(a)
Rule 5(2)(1)(b)
Rule (5)(2)(i)(b)
sub-rule (2),

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Smart Summary

Structured Summary of the Opinion (Bombay High Court — Mrs. Sujata V. Manohar, J.)

Factual and Procedural Background

The petitioner obtained an L.L.B. from Poona University in 1968 and was enrolled as an Advocate on the rolls of the Bar Council of Maharashtra on 1 November 1968. He practised as a lawyer at Chandrapur and Nagpur, largely in the High Court. On 6 October 1976 he was appointed Deputy Registrar at the Nagpur Bench of the Bombay High Court.

In March 1977 and subsequently by an advertisement dated 15 October 1980 the High Court invited applications for appointment to the posts of District Judges. The 1980 advertisement required that the "candidate must ordinarily be an Advocate or pleader who has practised in the High Court, Bombay or courts subordinate thereto for not less than seven years on the 1st October, 1980." The petitioner applied on 26 October 1980 but received no reply and alleged he was being treated as ineligible because, as Deputy Registrar, he was not a practising advocate at the time of application. After making a representation on 13 January 1981 and receiving no response, he filed the present petition on 16 May 1981 challenging his exclusion and contending, inter alia, that Rule 5(2)(i)(b) of the Bombay Judicial Service Recruitment Rules, 1956 is inconsistent with Article 233(2) of the Constitution.

Legal Issues Presented

Whether the phrase in Article 233(2) — that a person "has been for not less than seven years an Advocate or a pleader" — requires that the person continue to be a member of the Bar at the time of appointment (i.e., be a practising advocate of not less than seven years' standing immediately prior to appointment) or whether past membership/some past period of practice suffices.
Whether sub-rule (2)(i)(b) of Rule 5 of the Bombay Judicial Service Recruitment Rules, 1956 (which provides for direct recruitment of District Judges from members of the Bar who have practised for not less than seven years) is inconsistent with Article 233(2) of the Constitution.
Whether the Bombay Judicial Service Recruitment Rules, 1956 (in so far as they regulate recruitment of District Judges) are validly framed under the constitutional provisions relied upon (Article 234, the proviso to Article 309 and Article 309) or whether they exceed the Governor's power.
Whether the advertisement's use of the word "ordinarily" makes a candidate who is not a practising Advocate eligible (i.e., whether the advertisement can broaden eligibility beyond Article 233 and the recruitment rules).

Arguments of the Parties

Petitioner's Arguments

Rule 5(2)(i)(b) of the Bombay Judicial Service Recruitment Rules, 1956 is inconsistent with Article 233(2) because Article 233(2) only requires that a person should have practised as an Advocate or pleader for seven years at some time in the past; it does not necessarily require that he be a member of the Bar at the time of appointment. Therefore, a person who has ceased to be a practising advocate but had seven years' practice in the past should be eligible.
The advertisement's phrase "ordinarily be an Advocate" (emphasis by petitioner) contemplates that in some other cases non-practising advocates might be considered; this should benefit the petitioner.
Challenged validity of the Bombay Judicial Service Recruitment Rules, 1956 to the extent they provide for recruitment of District Judges, asserting such rules are not authorised under Article 234 or Article 309 (the argument being Article 234 concerns persons other than District Judges and thus cannot authorise rules for District Judges).

Respondents' Arguments / Case as Presented by Court

The State/respondents relied on the text of Article 233, the historical context of recruitment to District Judges and prior authorities (including Supreme Court decisions) to contend that Article 233(2) refers to members of the Bar who continue to be so at the time of appointment (i.e., advocates of not less than seven years' standing).
The Bombay Judicial Service Recruitment Rules, 1956 were enacted by the Governor after consultation with the Bombay Public Service Commission and the High Court and in the exercise of powers under Article 234, the proviso to Article 309 and Article 309; therefore the rules are validly framed and applicable.
Respondents explained two historical appointments (N.M. Shanbaug and B.J. Rele) of non-practising persons to judicial posts by stating that was the view taken by the High Court at that time, but provided no legal challenge or further justification; the court noted these appointments were not litigated.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Chandra Mohan v. State of U.P., A.I.R. 1966 S.C. 1987	Interprets "in the service of the Union or of the State" in Article 233 as meaning "judicial service"; identifies two sources of recruitment — judicial service and members of the Bar.	Cited as primary Supreme Court authority supporting the view that Article 233(2) contemplates recruitment from the Bar as continuing members (i.e., "members of the Bar" of required standing) and that "service" means judicial service. Used to construe Article 233(2) to require current membership of the Bar at appointment.
Mubarak Mazdoor v. K.K. Banerji, A.I.R. 1958 All. 323	Interpreted the phrase "a person who has been a Judge" (in a different statutory context) to mean a person who at any time in the past held the office — i.e., "has been" can mean sometime in the past.	Discussed to illustrate that the phrase "has been" can have different meanings depending on context; court observed this decision is not directly relevant to Article 233(2) because context differs.
State of Bombay v. Vishnu Ramchandra, 63 Bom.L.R. 427 (S.C.)	Held that "has been" describes a past action; interpretation depends on the scheme and context of the enactment (example: section 57 Bombay Police Act).	Used to show that the meaning of "has been" depends on statutory context; cited as authority for contextual interpretation but not decisive by itself for Article 233(2).
Rameshwar Dayal v. State of Punjab, A.I.R. 1961 S.C. 816	Considered whether pre-partition practice in the Lahore High Court could be counted for the seven-year requirement under Article 233; and addressed individuals who had suspended their licences or who were employed at time of appointment.	Court noted that on facts the Supreme Court held those persons fulfilled Article 233's requirements and, insofar as several respondents continued to be Advocates until appointment, the decision does not directly resolve the present interpretive question. The opinion relied on the factual findings in that case rather than using it as a binding rule on the present issue.
Balasaheb (Balashaeb) Vishnu Chavan v. State of Maharashtra, Misc. Appli. No. 763 of 1978; (1984) 86 Bom.L.R. 225	Division Bench of Bombay High Court upheld validity of Rule 5(2) of the Bombay Judicial Service Recruitment Rules, 1956; Supreme Court later upheld that Division Bench decision (though compatibility with Article 233(2) was not argued before Supreme Court).	Cited as precedent that Rule 5(2) had previously been upheld by this High Court and subsequently by the Supreme Court on the subjects actually argued; court observed that the specific question of compatibility with Article 233(2) was not argued previously, so the earlier decisions do not resolve the present interpretive issue.
Chandra Mohan v. State of U.P. and others, A.I.R. 1966 S.C. 1987 (as discussed later and an Allahabad High Court version A.I.R. 1969 All. 230)	Supreme Court set out legislative history of recruitment to District Judges and concluded that "service" in Article 233(2) means judicial service; recruitment from executive services was not intended; the phrase "has been" should be read so as to refer to members of the Bar of required standing.	Court relied on the Supreme Court's historical analysis and conclusions to hold that Article 233(2) must be interpreted as referring to persons who continue to be members of the Bar at the time of appointment (i.e., advocates of requisite standing), thus supporting the validity of Rule 5(2).
Satya Narayan Singh v. High Court of Judicature, Allahabad, A.I.R. 1981 S.C. 308 (reporting observations)	Observed that the requirement in Article 233(2) must be fulfilled in the case of recruitment from the Bar as distinct from judicial service; supported the characterization of the second source as "members of the Bar."	Cited as supporting authority that Article 233(2) refers to members of the Bar who have been of seven years' standing and not to persons who ceased to be members of the Bar and are then serving in other services at the time of application.
Chandra Mohan v. State of U.P., A.I.R. 1969 All. 230 (Allahabad High Court)	Interpreted the phrase "has been" in Article 233(2) as meaning "has been some time in the past" (i.e., not necessarily continuing membership at the time of appointment).	The present court explicitly stated respectful disagreement with this Allahabad High Court interpretation and distinguished it in light of the Supreme Court authorities that pointed to a requirement of continuing membership of the Bar immediately prior to appointment.

Court's Reasoning and Analysis

The court framed the central interpretive question around the phrase in Article 233(2): whether "has been for not less than seven years an Advocate or a pleader" requires continuous membership of the Bar up to the date of appointment or whether any prior seven-year period of practice suffices.

The court examined the grammatical possibilities of "has been" (it can denote a state at or immediately before appointment or an event at some time in the past) and concluded that context and legislative history must determine meaning. Accordingly, the court reviewed:

Supreme Court precedent (Chandra Mohan) which analysed the history of recruitment to District Judges and concluded that the two sources of recruitment are (i) judicial service and (ii) members of the Bar; the term "service" means judicial service and recruitment from executive services was not intended. This history informed the court that the framers did not intend to permit recruitment from persons currently employed in non-judicial services simply because they had been on the Bar at some earlier time.
Other authorities where the phrase "has been" was interpreted contextually (Mubarak Mazdoor; State of Bombay v. Vishnu Ramchandra). The court noted these demonstrate that meaning varies with statutory scheme and context and are therefore not determinative here.
Rameshwar Dayal and Satya Narayan Singh were considered: the former was found factually to involve persons who continued to be Advocates until appointment (and thus did not directly resolve the interpretive controversy); the latter endorses the view that Article 233(2) must be satisfied in cases of recruitment from the Bar and that it refers to members of the Bar of seven years' standing.
The Bombay High Court's own earlier Division Bench decision in Balasaheb Vishnu Chavan upholding Rule 5(2) was noted, but the court observed the specific compatibility point with Article 233(2) was not argued before the Supreme Court in that matter, so it did not decide the substantive interpretive issue now before the court.

Weighing history, context and authoritative Supreme Court observations, the court concluded that the phrase in Article 233(2) must be read as requiring that the person be a member of the Bar of not less than seven years' standing immediately prior to appointment (i.e., continue to be an Advocate or pleader at the time of appointment). The court said this interpretation is consistent with the constitutional design to preserve judicial independence and to avoid recruitment from executive services by persons who had been advocates in the past but were then employed elsewhere.

Applying that interpretation to the rules, the court found Rule 5(2) of the Bombay Judicial Service Recruitment Rules, 1956 to be consonant with Article 233 since it recruits District Judges either by promotion from the judicial service or by direct recruitment from members of the Bar who have practised as advocates or pleaders for not less than seven years. The court further considered the petitioner's challenge to the validity of the 1956 Rules on the ground that the Governor lacked power under Article 234 or Article 309. The court observed that the Rules were made not only under Article 234 but also under the proviso to Article 309 (which empowers the Governor to make recruitment rules until the Legislature makes provision). Therefore, the Bombay Judicial Service Recruitment Rules, 1956 were validly framed.

The court also rejected the petitioner's reliance on the word "ordinarily" in the advertisement as a ground to expand eligibility, noting that such an advertisement cannot override the Constitution and the statutory/rule provisions governing eligibility under Article 233 and the recruitment rules.

Finally, regarding two earlier appointments of persons who were not practising advocates (N.M. Shanbaug and B.J. Rele), the court noted the only explanation was that that was the view taken by the High Court at the time; since those appointments were not judicially challenged, the court would not re-open or adjudicate on their validity in the present petition.

Holding and Implications

Holding:

PETITION DISMISSED.

The court dismissed the petition, discharged the rule and ordered that in the circumstances there would be no order as to costs. The court held specifically that:

Article 233(2) should be interpreted to refer to persons who have been Advocates or Pleaders and who continue to be so at the time of appointment — i.e., members of the Bar of not less than seven years' standing immediately prior to appointment.
Rule 5(2) of the Bombay Judicial Service Recruitment Rules, 1956, which provides for appointment to District Judges either by promotion from the judicial service or on recommendation from the Bar for members who have practised for not less than seven years, is in consonance with Article 233 and is valid.
The Bombay Judicial Service Recruitment Rules, 1956 were validly made by the Governor relying on Article 234 and the proviso to Article 309 (and Article 309), and are therefore intra vires.
An advertisement cannot broaden eligibility beyond the constitutional provision and recruitment rules; the word "ordinarily" in the advertisement did not make non-practising advocates eligible in contravention of Article 233 and the Rules.

Implications:

The immediate effect is that the petitioner is not entitled to appointment as a District Judge under the circumstances alleged; the recruitment scheme set out in Rule 5(2) remains valid and operative. The court relied on existing Supreme Court authorities and its view of constitutional history to reach its interpretation; the opinion resolves the dispute in this case but does not purport to set aside any earlier unchallenged appointments (the court noted two historical appointments which had not been litigated). The decision, as recorded in this opinion, enforces the requirement that direct recruits from the Bar be practising members of the Bar of the requisite standing at the time of appointment.

Order as recorded: Petition dismissed; rule discharged; no order as to costs.

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Sudhakar Govindrao Deshpande v. State Of Maharashtra And Others

Cases referred :

1. Chandra Mohan v. State of U.P., A.I.R. 1966 S.C. 1987.

2. Mubarak Mazdoor v. K.K. Banerji, A.I.R. 1958 All. 323.

3. State of Bombay v. Vishnu Ramchandra, 63 Bom.L.R. 427 (S.C.).

4. Rameshwar Dayal v. State of Punjab, A.I.R. 1961 S.C. 816.

5. Balashaeb Vishnu Chavan v. State of Maharashtra, Misc.Appli. No. 763 of 1978.

6. Balasaheb Vishnu Chavan v. State of Maharashtra, (1984)86 Bom.L.R. 225.

7. Satya Narayan Singh v. High Court of Judicature Allabahab, A.I.R. 1985 S.C. 108.

8. Chandra Mohan v. State of U.P., A.I.R. 1969 All. 230.

Advocates appeared :

D.K. Ghaisas, for petitioner.

S.M. Shah, for respondents.

Mrs. SUJATA V. MANOHAR, J.:---The petitioner passed his L.L.B. examination from Poona University in 1968 and was enrolled as an Advocate on the rolls of the Bar Council of Maharashtra on 1-11-1968. The petitioner after his enrolment was a practising lawyer at Chandraput and Nagpur. At Nagpur he had practised mostly in the High Court.

2. On 6-10-1976 the petitioner was appointed Deputy Registrar at the Nagpur Bench of the Bombay High Court. In March 1977 an advertisement was published inviting applications for the posts of District Judges. The Petitioner applied for the post. He was, however, not called for interview. Thereafter, on 15th October, 1980 an advertisement was issued by the High Court at Bombay inviting applications for five posts of District Judges in the Judicial Service of the State of Maharashtra. Paragraph 2 of the press advertisement stated

"candidate must ordinarily be an Advocate of pleader who has practised in the High Court, Bombay or courts subordinate thereto for not less than seven years on the 1st October, 1980."

The petitioner applied for the post of a District Judge by his application dated 26th October, 1980. There was no reply to this application. The petitioner apprehended that he was not being considered for the post because he was holding the post of Deputy Registrar. Therefore, he was considered as ineligible for appointment as he was not a practising Advocate at the time when he made the application. He, therefore, made a representation to the Registrar of the High Court dated 13th January, 1981. The petitioner did not received any reply to this representation. Thereupon the petitioner has filed the present petition on 16th May, 1981.

3. Article 233 of the Constitution provides for appointment of District Judges. It is as follows :

"233(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(2) deals with persons not already in the service of the Union or the State. The phrase "in the service of the Union or of the State" has been interpreted to mean "judicial service" by the Supreme Court. See (Chandra Mohan v. State of U.P.)1, reported in A.I.R. 1966 S.C. 1987. In the case of persons who are not in judicial service, only a person who has been for not less than seven years an Advocate or a pleader shall be eligible for appointment as a District Judge.

4. Article 234 provides that appointment of persons other than District Judges shall be made by the Governor of the State in accordance with the rules made by him in that behalf as set out in that Article.

5. Article 309 of the Constitution is to the following effect :

"309. Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State :

Provided that it shall be competent for the President or such persons as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of services of persons appointed, to such services and posts until provisions in that behalf is made by or under an Act of the appropriate Legislature under this Article, and any rule so made shall have effect subject to the provisions of any such Act."

6. The Governor of Bombay after consultation with the Bombay Public Service Commission and the High Court of Bombay, in exercise of the powers conferred by Article 234, proviso to Article 309 and Article 234 read with Government Notification No. 173-A/7 dated 17th August, 1953 relating to Magistrates mentioned therein has made rules regulating recruitment to the Bombay Judicial Service. These are known as Bombay Judicial Service Recruitment Rules, 1956. These rules deal with recruitment to the judicial service in the State. The judicial service in the State consists of two branches; junior branch and senior branch. The senior branch consist of District Judges, the Principal Judge and the Judges of the Bombay City Civil Court, the Chief Judge and the Additional Chief Judge of the Small Causes Court, Bombay and the Assistant Judges. Rule 5 prescribes method of recruitment to the Senior Branch. sub-rule (2) of Rule 5 is as follows :

"5(2) District Judges and Judges of the Bombay City Civil Court---

i) District Judges-Appointments to the posts of District Judges shall be made by the Governor :-

a) in consultation with the High Court by promotion from the members of the Junior Branch who has ordinarily served as Assistant Judges; and

b) on the recommendation of the High Court by promotion from the 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:"

Under sub-rule 2(i)(a) appointment to the post of a District Judge is by promotion from the members of the Junior Branch who have ordinarily served as Assistant Judges. Rule 5(2)(1)(b) provides for recruitment from the members of the Bar who have practised as Advocates or pleaders for not less than 7 years in the High Court or courts subordinate thereto. Under sub-rule (2), therefore, there are two methods of appointment of District Judges. One is by promotion from judicial service as prescribed in sub-rule (2) while the other is by direct recruitment from the member of the bar who have practised as Advocates or pleaders for not less than 7 years as set out in sub-rule (b).

7. Under the provisions of Rule 5(2)(i)(b) recruitment is required to be made from the members of the Bar, who have practised as Advocates or pleaders for not less than seven years. Under this rule, therefore, persons who are not members of the Bar are not eligible for being appointed as District Judges, unless they fall within the provisions of sub-rule (a). The petitioners, however, contends that sub-rule (b) is inconsistent with Article 233(2) of the Constitution. According to the petitioner under Article 233(3) it is not necessary that a person should be a member of the Bar when he makes an application for appointment as a District Judge. All that is required is that he should have practised as an Advocate or a pleader for seven years some time in the past. Hence Rule (5)(2)(i)(b) is in conflict with Article 233(2) and should be struck down.

8. It is, therefore, necessary to examine Article 233(2). The relevant phrase in the article is "a person...shall only be eligible...if he has been for not less than seven years an Advocate or a pleader...". The word "has been" can refer either to an event that has happened to the immediate past or to an event that has happened in the near past. For example, the statement "has been to U.S.A." refers to his visit to U.S.A. some time in the past; while the statement, "X has been ill for the last month", refers to an event that has happened in the immediate past. It is, therefore, necessary to examine whether Article 233(2) merely requires that a person should have some time in the past, practised as an Advocate or Pleader for seven years or whether it requires that a person should have practised as an Advocate or pleader for seven years, immediately before appointment. In other words, he should be a member of the Bar of not less than seven years standing at the date of appointment. The relevant part of Article 233(2) will have to be interpreted depending upon the context, the intention of the framers of the Constitution and the past legislative history of this provision.

9. Article 233(2) has been dealt with in a number of decisions of the Supreme Court and some of the High Court. There have also been cases where phrases similar to the one in question have been interpreted. Decisions dealing with others such phrases are not directly relevant because in each case interpretation will depend upon the context in which the phrase occurs. For example, in the case of (Mubarak Mazdoor v. K.K. Banerji)2, reported in A.I.R. 1958 Allahabad, 323, the Allahabad High Court was required to consider the provisions of section 86(3) of the Representation of the People Act, 1951. Section 86 deals with eligibility for appointment to an election Tribunal. The phrase in question occurs in the proviso to sub-section (3) of that section which says that "if the Election Commission considers it expedient so to do, it may appoint a person who has been a Judge of a High Court as the member of a Tribunal." The Court held that the phrase "a person who has been a Judge" means a person who has at some time held office as a Judge. It does not necessarily mean that the person must be holding office at the time of his appointment as a member of the Tribunal. The Court examined the context in which the phrase occurred and held that it applied to a person who had, at any time in the past, held office as a Judge. This decision is not relevant in the present case where the context is very difficult.

10. Similarly in the case of (The State of Bombay v. Vishnu Ramchandra)3, reported in 63 Bom.L.R. 427 the Supreme Court was required to consider section 57 of the Bombay Police Act which dealt with removal of persons convicted of certain offences. The Court said that the words "has been" describe a past action. The Court came to the conclusion looking to the scheme of the enactment as a whole and particularly other portions of section 57, which made it clear that a reference was made to a person who had committed an offence in the past, even though such an offence may have been committed before the coming into operation of the Bombay Police Act, 1951. The Court said that an Act designed to protect the public against the acts of a harmful character may be construed retrospectively, if the language admits such an interpretation, even though it may equally have a prospective meaning. Once again the interpretation put on the words "has been" depended upon the context in which these words occurred and the scheme of the Act in which they were to be found.

11. In the case of (Rameshwar Dayal v. State of Punjab)4, reported in A.I.R. 1961 S.C. 816 the Supreme Court was required to consider the cases of several persons who had been appointed as District Judges in the State of East Punjab. Their eligibility for appointment was challenged because they had not practised for a period of seven years as Advocates on the rolls of the East Punjab High Court. They had practised in the Lahore High Court before partition. The Supreme Court was required to consider whether the period of practice in the Lahore High Court before partition can be counted for the required period of seven years. The Supreme Court held that this period of practice before the Lahore High Court could be so considered to meet the required period of seven years practice as an Advocate. However, among the persons whose appointments were challenged, respondent No. 3 Harbans Singh was working as a Deputy Custodian, Evacuee Property, at the time when he was appointed as a District and Sessions Judge. Respondent No. 6, P.R. Sawhney, had got his licence to practice as an Advocate voluntarily suspended on 6th of May, 1949. He was appointed as a District and Sessions Judge on 6th April, 1957. In their cases, it was also contended that their names were not factually on the roll of Advocates at the time when they were appointed as District Judges. The Supreme Court did not deal with this aspect directly. It observed that they fulfilled the requirements of Article 233. It then said that even if the Court were to proceed on the footing that these persons were recruited from the Bar and their appointment had to be decided by the requirements of Article 233(2), it must be held that they fulfilled those requirements. The Court said

"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."

(page 822, 823). It will, therefore, be seen that on the facts of the case the Supreme Court came to the conclusion that these persons continued to be Advocates of the Punjab High Court till they were appointed as District Judges. Although the issue of their not being practising Advocates was raised before the Supreme Court, the Supreme Court seems to have held on facts that they were Advocates of the Punjab High Court till they were appointed as District Judges. This decision, therefore, does not directly throw any light on the interpretation of Article 233(2).

12. The provisions of Rule 5(2) of the Bombay Judicial Service Recruitment Rules, 1956 came up for interpretation before a Division Bench of this High Court in the case of (Balasaheb Vishnu Chavan v. State of Maharashtra)5, in Misc. Application No. 763 of 1978 along with other such applications. The Division Bench consisting of Sawant and Pratap, JJ., by their judgment and order dated 25th June, 1981 upheld the validity of this rule. Their decision was upheld by the Supreme Court in the case of (Balasaheb Vishnu Chavan v. State of Maharashtra)6, reported in (1984)86 Bom.L.R. 225. The point however, of compatibility of Rule 5(2) with Article 233(2) of the Constitution was not argued in that case. Hence the decision in that case is also not of any assistance on the point at issue.

13. There are, however, two decisions of the Supreme Court where certain observations made by the Supreme Court are directly relevant. The first case is of Chandra Mohan v. State of Uttar Pradesh and others, reported in A.I.R. 1966 S.C. 1987. The Supreme Court in that case was required to consider the constitutional validity of Uttar Pradesh Higher Judicial Service Rules for Recruitment of District Judges. These rules were struck down as contravening Clauses 1 and 2 of Article 233 of the Constitution by the Supreme Court. In that case the Registrar of the Allahabad High Court had called for applications for recruitment to the vacancies in the Uttar Pradesh Higher Judicial Service from Barristers, Advocates, Vakils and Pleaders of more than seven years standing and from "judicial officer". The latter expression covered members of the Executive Department discharging some revenue and magisterial duties. Some persons who were "judicial officers" were selected for appointment as District Judges. Their selection was challenged in the said case.

14. One of the points considered in that case was whether the Governor under Article 233(2) of the Constitution can directly appoint persons from services other than judicial services as District Judges. The Supreme Court analysed the provisions of that Article along with Articles 234, 235, 238 and 257 of the Constitution and summarised the provisions thus (page 1993) :

"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, viz. (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."

15. In para 20 of that judgment the Supreme Court has set out the history of the said provisions of the Constitution which is very relevant for the interpretation of Article 233. It seems that originally the posts of District and Sessions Judges and Additional Sessions Judges were filed by persons from the Indian Civil Service. In 1922 a notification was issued empowering the local Government to make appointments to the said service from the members of the Provincial Civil Service (Judicial Branch) or from the members of the Bar. In exercise of the powers conferred under section 246(1) and section 251 of the Government of India Act, 1935 the Secretary of State for India framed rules styled Reserved Posts (Indian Civil Service) Rules, 1938. Under those rules the Government was given the power to appoint to a district post a member of the judicial service of the Province or a member of the Bar. Though section 254(1) of the said Act was couched in general terms similar to those contained in Article 233(1) of the Constitution, the said rules did not empower him to appoint to the reserved post of District Judge a person belonging to a service other than the judicial service. 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. That was the factual position at the time, the Constitution came into force. It is unreasonable to attribute to the makers of 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, and intention to destroy the same by an indirect method. What can be more deleterious to the good name of the judiciary than to permit at the level of District Judges, recruitment from the executive department? The Supreme Court, therefore, came to the conclusion that the expression "the service" in Article 233(2) can only mean judicial service.

16. Looking to the history of recruitment to the posts of District Judges, it is equally clear that only the members of the Indian Civil Service, the Provincial Judicial Service and the Bar were eligible for appointment. At the time of enactment of the constitution only members of judicial service and the Bar were eligible. Article 233 embodied the existing position. It was not intended to change the existing position by making persons who may have been members of the Bar in the past, but who were currently employed elsewhere, eligible. Such persons would include, for example, lawyers employed in the executive departments. They were not made eligible for appointments as District Judges under Article 233(2). As the Supreme Court observed, the intention was to preserve the independence of the judiciary by not permitting recruitment from Executive Department or anywhere else. Article 233(2), therefore, does not make a person employed in service other than judicial service eligible if he has, in the past, been a member of the Bar for seven years or more. Such an interpretation would be destructive of the intention of the framers of the Constitution as set out by the Supreme Court in this judgment. In this context, therefore, the phrase "has been an Advocate or a pleader" must be interpreted as a person who has been immediately prior to this appointment as a member of the Bar, that is to say either an Advocate or a pleader. In fact, in the above judgment, the Supreme Court has repeatedly referred to the second group of persons eligible for appointment under Article 233(2) as "members of the Bar". Article 233(2), therefore, when it refers to a person who has been for not less than seven years an Advocate or pleader refers to a member of the Bar who is of not less than seven years standing.

17. The second case where observations to a similar effect are found is the case of (Satya Narain Singh v. High Court of Judicature, Allahabad)7, reported in A.I.R. 1981 S.C. 308. In that case the Supreme Court was required to consider whether members of the Uttar Pradesh Subordinate Judicial Services are eligible for appointment as District Judges by direct recruitment under Article 233(2). The Supreme Court referred to the observations made by S.K. Das, J., in Rameshwar Dayal v. State of Punjab, A.I.R. 1971 S.C. 816 dealing with cases of Harbans Singh and Sawhney. It said, "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 requirement of Clause (2) had to be fulfilled." In paragraph 4 the Supreme Court referred to its own observations in the case of Chandra Mohan v. State of Uttar Pradesh, A.I.R. 1966 S.C. 1987 (supra) and underlined the following observations of Subba Rao, C.J.: "There are two sources of recruitment, namely: (i) Service of the Union or of the State, and (ii) members of the Bar." These observations of the Supreme Court also support the contention that Article 233(2) refers to members of the Bar who have been of seven years standing and not to persons who have ceased to be members of the Bar are in some other service at the time of their application for appointment as District Judges.

18. In the case, however, of (Chandra Mohan v. State of U.P. and others)3, reported in A.I.R. 1969 Allahabad 230, Allahabad High Court interpreted the phrase "has been" in Article 233(2) as "has been an Advocate or pleader some time in the past" and not as continuing to be an Advocate or pleader at the time of appointment as a District Judge. Looking, however, to the observations of the Supreme Court in the above two cases I respectfully differ from this interpretation put by the Allahabad High Court on Article 233(2) of the Constitution.

19. The phrase "has been" is capable of two interpretation, 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 their 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.

20. It was submitted by Mr. Ghaisas that in the advertisement inviting applications, Clause (2) states that a candidate must ordinarily be an Advocate or pleader who has practised in the High Court of Bombay or courts subordinate thereto for not less than seven years on 1st October, 1980. He has emphasised the word ordinarily and submitted that the clause contemplates other cases where a person who is not a practising Advocate can also be considered. In my view, this is not the correct interpretation of Clause 2. Clause 2 requires a candidate to have practised in the High Court of Bombay or courts subordinate thereto. The word ordinarily would certainly indicate other cases which can be considered. But these cases do not necessarily refer to cases of persons who are not practising Advocates. There can, for example, be cases of Advocates who have practised in other High Courts. In any case, such a clause in the advertisement cannot override the provisions of Article 233 and the Bombay Judicial Service Recruitment Rules, 1956.

21. It is urged by the petitioner that in the past, Rule 5(2) of the Bombay Judicial Service Recruitment Rules, 1956 and Article 233 have been interpreted by this High Court to cover cases of persons who have practised as Advocates in the past but who, on the date of appointment were members of the High Court staff. There are two such cases. The first case is the case of N.M. Shanbaug who was Additional Registrar of the High Court at the time when he was appointed to the post of a Judge of the City Civil Court, Bombay. This appointment was made on 2-12-1968. The second case is of B.J. Rele (afterwards Rele, J.) who formerly occupied the post of Official Liquidator at the time when he was appointed a Judge of the City Civil Court, Bombay on 4-12-1968. Both these persons were appointed in December 1968. The only explanation given by the respondents in the affidavit about these two appointments is that this was the view taken by the High Court at that time. The explanation is hardly satisfactory. Their appointments, however, were not challenged at any time in a Court of law and I cannot go into the question of the validity of their appointments. The provisions of the Constitution and the relevant Rules were not required to be interpreted in a Court of law in their case. Provisions of Article 233 and Rule 5(2) do not permit a member of the High Court Staff such as the petitioner to be appointed as a District Judge. Two appointments in the past, made almost simultaneously, do not give any right to persons who are not members of the Bar to be appointed as District Judges. In such a situation the provisions of Article 14 or 16 are not attracted.

22. It is submitted by Mr. Ghaisas, learned Advocate for the petitioner, that the Bombay Judicial Service Recruitment Rules of 1956, in so far as they provide for rules of recruitment of District Judges are not valid because such rules for recruitment to the post of District Judges are not authorised under the provisions of Article 234 of the constitution or Article 309 of the Constitution. Now, Article 234 of the Constitution authorises the framing of the rules by the Governor for recruitment of persons others than District Judges. Article 234, therefore, does not authorise framing of rules for the appointment of District Judges. The Bombay Judicial Services Recruitment Rules however, are not framed only under Article 234 of the Constitution. They are also framed in the exercise of powers conferred by the proviso to Article 309. Under the proviso to Article 309 it is competent for the Governor to make rules regulating the recruitment and conditions of service of persons appointed to services and posts in connection with the affairs of a State until provision in that behalf is made by or under an Act by the appropriate legislature. Since the judicial service under the State and posts connected therewith are posts in connection with the affairs of the State, the Government is empowered to make rules for recruitment to the Bombay Judicial Service under the proviso to Article 309. The Bombay Judicial Service Recruitment Rules, 1956 are, therefore, validly framed.

In the premises the petition is dismissed and the rule is discharged. In the circumstances of the case there will be no order as to costs.

Petition dismissed.

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Sudhakar Govindrao Deshpande v. State Of Maharashtra And Others

Structured Summary of the Opinion (Bombay High Court — Mrs. Sujata V. Manohar, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondents' Arguments / Case as Presented by Court

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sudhakar Govindrao Deshpande v. State Of Maharashtra And Others

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