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Biju Babu v. High Court Of Kerala

Kerala High Court

Mar 25, 2008

Judgment

Subsequent
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Structured Summary of the Opinion (K. Balakrishnan Nair, J.)

Factual and Procedural Background

The appellant is a lawyer who was enrolled as an advocate on 22.2.1987 and subsequently appointed to posts as a Public Prosecutor: by an order on the advice of the Union Public Service Commission (appointment date referenced as 6.2.2001 in the opinion) and later by an order dated 3.9.2001 as a Special Public Prosecutor under S.24 CrPC to conduct cases for the C.B.I. The High Court of Kerala issued a notification (Ext. P7 dated 16.4.2007) inviting applications by direct recruitment to six vacancies for District and Sessions Judge, requiring that candidates be practising advocates who had practised for not less than seven years.

The appellant applied and received a hall ticket (Ext. P11) to appear in the scheduled written test (27–29.10.2007). By communication dated 9.10.2007 (Ext. P13), the High Court informed the appellant that her application was rejected on the ground that she was not a practising advocate on the date of application and recalled the admission ticket. The appellant filed a Writ Petition challenging that rejection. The learned Single Judge dismissed the Writ Petition on 24.10.2007, holding that the petitioners were full‑time salaried employees and not practising advocates and that they were members of a service under the Union of India and therefore disqualified. The appellant filed this Writ Appeal on 21.1.2008 (with condonation of delay), and the appeal was heard by this Court.

Legal Issues Presented

Whether the appellant, appointed as a Public Prosecutor by the Central Government to conduct C.B.I. cases (a full‑time, salaried post in connection with the affairs of the Union), is eligible to be considered for appointment as a District and Sessions Judge in the Kerala State Higher Judicial Service by direct recruitment.
Whether a person holding the C.B.I. Public Prosecutor post can be treated as a "practising advocate" for the purposes of eligibility (including the meaning and effect of R.49 of the Bar Council of India Rules and the definition of "advocate" in S.2(1)(a) of the Advocates Act).
Whether Art. 233(2) of the Constitution, read with the C.B.I. Recruitment Rules framed under the proviso to Art. 309 and the Bar Council rules, constitutionally bars such a person from appointment as a District Judge.

Arguments of the Parties

Appellant's Arguments

The appellant's counsel submitted that the appellant must be treated as a practising advocate under S.2(1)(a) of the Advocates Act and relevant Bar Council rules. An advocate receiving a salary should still be considered a practising advocate.
Reliance was placed on R.49 of the Bar Council of India Rules (as it then stood) and the Apex Court decision in Sushma Suri v. Govt. of NCT of Delhi ((1999) 1 SCC 330) to support the contention that the appellant is a practising lawyer who appears in court and pleads cases for the C.B.I., and therefore is qualified to apply for the post of District and Sessions Judge.

Respondent's Arguments

The respondent contended that the appellant is a full‑time salaried employee and therefore not a practising advocate; reliance was placed on the subsequent clarification/explanation by the Apex Court in Satish Kumar Sharma v. Bar Council of H.P ((2001) 2 SCC 365 : AIR 2001 SC 509).
The respondent relied on the Division Bench decision in Biji v. Registrar, High Court of Kerala (2001 (3) KLT 99), which held an Assistant Public Prosecutor under the Kerala Government ineligible to apply for the post of Munsiff‑Magistrate.
It was also contended that in view of the amendment to R.49 (effective 22.6.2001) the writ petitioners were ineligible, and that Art. 233(2) of the Constitution precludes appointment of a person already in the service of the Union or State as a District Judge.
Documentary materials produced by the respondents included the order appointing the appellant as Public Prosecutor (Annexure‑RI), the C.B.I. Recruitment Rules, 2002 (Annexure‑RII), and communications from the Bar Council of Kerala and the Kerala Advocates’ Welfare Fund (Annexures RIII and RIV) indicating that the appellant had indicated not to be in active practice after joining C.B.I. and had not complied with certain welfare fund formalities.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sushma Suri v. Govt. of National Capital Territory of Delhi ((1999) 1 SCC 330)	Relied on by the appellant to support the proposition that a salaried lawyer could be regarded as a practising advocate under the Bar Council rules.	The decision was acknowledged as relied upon by the appellant, but the Court noted that this decision has since been explained/clarified by the Apex Court in a later decision (Satish Kumar Sharma). The opinion did not rest its conclusion on this decision alone.
Satish Kumar Sharma v. Bar Council of H.P ((2001) 2 SCC 365 : AIR 2001 SC 509)	Explained/clarified the principles in Sushma Suri and addressed the effect of R.49 and related rules regarding practising advocates and salaried law officers.	The Court relied on the explanation given in this decision to support the proposition that full‑time salaried law officers (members of Union/State services) are not to be treated as practising advocates for the purpose of eligibility for District Judge appointment; the opinion refers to it as clarificatory of the earlier case.
Biji v. Registrar, High Court of Kerala (2001 (3) KLT 99)	Applied in a similar factual context to hold that an Assistant Public Prosecutor under the Kerala Government was not eligible to apply for Munsiff‑Magistrate.	The Court noted that this Division Bench decision was squarely applicable to the issue and supported the approach that public prosecutorial officers in government service are ineligible for certain judicial appointments; the present Court found it unnecessary to repeat detailed discussion of these earlier decisions given the existing rule position.

Court's Reasoning and Analysis

The Court articulated a step‑by‑step analysis grounded in constitutional provisions, recruitment rules, and Bar Council rules as follows:

The C.B.I. Recruitment Rules, 2002 (Annexure‑RII) were framed by the President of India in exercise of the power under the proviso to Art. 309 of the Constitution. The Rules classify the post of Public Prosecutor as a Group A gazetted non‑ministerial post, with a specified pay scale and pensionable service status under Central Civil Services (Pension) Rules, 1972.
Because the Recruitment Rules were made under the proviso to Art. 309, the Court concluded that the post of Public Prosecutor in the C.B.I. is a post "in connection with the affairs of the Union." Consequently, a person holding that post is a member of a service connected with the Union.
The Court then relied on Art. 233(2) of the Constitution, which provides that only a person "not already in the service of the Union or of the State" shall be eligible to be appointed a District Judge (subject to having practised for not less than seven years and being recommended by the High Court). The Court emphasized the exclusionary phrase and concluded that a person who is a member of a Union service is constitutionally barred from appointment as a District Judge under Art. 233(2).
The Court examined the Bar Council of India Rule 49. As it presently stands (post‑amendment), R.49 provides that an advocate shall not be a full‑time salaried employee of any person or government while practising, and that on taking up employment the advocate must intimate the Bar Council and shall cease to practise. The Court noted that earlier, before 22.6.2001, R.49 contained an exception for designated Law Officers of the Central Government or State who were required by their terms of appointment to act and/or plead in courts. That exception has since been deleted.
The Court referred to the definition of "advocate" in S.2(1)(a) of the Advocates Act ("advocate means an advocate entered in any roll under the provisions of this Act") and to the Bar Council of Kerala Rules (Chap. V) which require disclosure of employment at the time of enrolment and production of relieving orders where applicable (Form No.2, Columns 15 and 16). From these provisions, the Court reasoned that a person who takes up full‑time salaried employment (such as the C.B.I. Public Prosecutor post) cannot properly be treated as being on the roll as a practising advocate unless the employment is relinquished in accordance with the rules.
Even if the appellant did not comply with the formal requirement of intimating the Bar Council and suspending her enrolment, the Court held that she could not be treated as an advocate on the roll while occupying the C.B.I. post; accordingly she did not satisfy the essential qualification of being a practising advocate at the date of application for the District Judge vacancy.
The Court observed that earlier decisions (Sushma Suri and its clarification in Satish Kumar Sharma) and the Division Bench decision in Biji supported the same outcome in similar factual circumstances, but stated that detailed discussion of those authorities was unnecessary given the then‑current rule position and the constitutional bar under Art. 233(2).
On this combined basis — the character of the C.B.I. post as a Union service post, the operation of Art. 233(2), the effect of R.49 and the Advocates Act definition, and the Bar Council of Kerala enrolment rules — the Court found no error in the Single Judge's conclusion that the appellant was not eligible, upheld the rejection communicated by Ext. P13, and dismissed the Writ Appeal.

Holding and Implications

Holding: The Writ Appeal fails and is dismissed. The Court upheld the Single Judge's decision that the appellant was not eligible to be considered for appointment as a District and Sessions Judge because she was a member of a service in connection with the affairs of the Union (holding a full‑time salaried C.B.I. Public Prosecutor post) and therefore barred by Art. 233(2), and was not to be treated as a practising advocate on the rolls for the purpose of eligibility under the recruitment notification.

Implications / Consequences:

The direct consequence for the parties is that the appellant's application for appointment to the post of District and Sessions Judge was properly rejected (Ext. P13), and the judgment of the Single Judge dismissing the Writ Petition is affirmed.
The Court's decision rests on the application of existing constitutional provision (Art. 233(2)), the C.B.I. Recruitment Rules framed under Art. 309, and the Bar Council / enrolment rules; the opinion does not purport to announce any novel legal principle beyond applying those provisions and earlier case law to the facts before it.

This summary is prepared strictly from the content of the provided opinion and does not add information beyond what is contained in the opinion text.

Show all summary ...

K. Balakrishnan Nair, J.:— *The point that arises for decision in this Writ Appeal is whether the appellant, who is a Public Prosecutor appointed by the Central Government, to conduct cases for the C.B.I, is eligible to be considered for appointment to the post of District and Sessions Judge in the Kerala State Higher Judicial Service, by direct recruitment The appellant herein was the second petitioner in the Writ Petition. The respondents herein were respectively the respondent and first petitioner therein.

2. The brief facts of the case are the following: The High Court of Kerala as per Ext. P 7 notification dated 16.4.2007, invited applications for appointment to six vacancies in the post of District and Sessions Judge, by direct recruitment from the Bar. One of the essential qualifications for appointment was that the candidate shall be a practising advocate and should have practised for a period of not less than seven years. The said qualification, as notified in Ext. P 7, reads as follows:

“He shall be a practising Advocate and should have so practised for a period of not less than 7 (seven) years.”

3. The main dispute that arose for decision in this case was whether the writ petitioners were having the said qualification. The appellant herein was enrolled as an advocate by the Bar Council of Kerala on 22.2.1987, as evident from Ext. P 2 certificate of enrolment. She was appointed as a Public Prosecutor by the Central Government on the advice of the Union Public Service Commission on 6.2.2001 The copy of the appointment order Annexure-RI would show that the appellant was appointed to Group B gazetted post under the Delhi Police Establishment. Later, the Central Government appointed her by Ext. P 4 order dated 3.9.2001 as Special Public Prosecutor under S. 24 of the Criminal Procedure Code. Eversince, she is working as Public Prosecutor under the C.B.I While so, as mentioned earlier, applications were invited by the High Court of Kerala by Ext. P 7 notification for appointment to the post of District and Sessions Judge. The appellant applied and she was issued with Ext. P 11 hall ticket to participate in a written test scheduled to be held from 27.10.2007 to 29.10.2007 Later, she was served with Ext. P 13 communication dated 9.10.2007, informing her that she not being a practising advocate on the date of the application, her application has been rejected and the admission: ticket issued to her for the test has been recalled. In the above background, the Writ Petition was filed.

4. In the Writ Petition, she did hot produce the appointment order to the post of Public Prosecutor, made on the advice of the U.P.S.C She sought reliefs in the Writ Petition, mainly relying on a repealed provision in R. 49 of Chapter II of Part VI of the Bar Council of India Rules and also a decision of the Apex Court in Sushma Suri v. Govt, of National Capital Territory of Delhi ((1999) 1 SCC 330).

5. The respondent in the Writ Petition resisted the application, contending that the said decision has since been further explained and clarified by the Apex Court in Satish Kumar Sharma v. Bar Council Of H.P ((2001) 2 SCC 365 : AIR 2001 SC 509). It was also contended that the case of the writ petitioners is squarely covered by the decision of the Division Bench of this Court in Biji v. Registrar, High Court of Kerala (2001 (3) KLT 99), wherein the eligibility of an Assistant Public Prosecutor under the Kerala Government for applying to the post of Munsiff-Magistrate was considered. The respondent also pointed but that in view of the amendment to R. 49, introduced with effect from 22.6.2001, the Writ Petitioners were ineligible. Reliance was also placed on the provisions of Art. 233(2) of the Constitution of India.

6. The learned single Judge upheld the contentions of the respondent and dismissed the Writ Petition. It was held that the writ petitioners were full time salaried employees and therefore, they were not practising advocates. It was also held that they were disqualified to be appointed, as they were members of a service under the Union of India. The judgment was rendered on 24.10.2007 and the tests were held as scheduled from 27.10.2007 to 29.10.2007 Thereafter this Writ Appeal is filed on 21.1.2008 with an application to condone the delay of 35 days in filing the same. The delay was condoned by this Court and when the Writ Appeal came up for admission, we heard the learned senior counsel Sri Ramakumar for the appellant and the learned senior counsel Sri. KRB. Kaimal for the 1st respondent

7. In the appeal, the 1st respondent filed a statement and along with that, it has produced Annexure-RI dated 24.1.2001, which is the order appointing the appellant as Public Prosecutor in the C.B.I The respondent also produced Annexure-RII Central Bureau of Investigation (Legal Advisers and Prosecutors) Recruitment Rules, 2002, Annexure-RIII communication dated 25.2.2008 from the Bar Council of Kerala and Annexure-RIV communication dated 25.2.2008 from the Kerala Advocates’ Welfare Fund Trustee Committee. Annexure-RIII communication would state that any person taking up full time employment as a salaried employee should intimate about the same to the Bar Council, but the appellant has not done so. Annexure-RIV communication would show that since the appellant failed topaythe subscription to the Advocates’ Welfare Fund, notice was issued to heron 25.2.2003 In reply to that, on 9.4.2003, she informed the Bar Council that she is not in active practice as an advocate, as she joined the C.B.I, Chennai as Public Prosecutor.

8. The learned senior counsel Sri. K. Ramakumar submitted that the appellant should be treated as a practising advocate, as the term “advocate” is understood under S. 2(1)(a) of the Advocates Act. An advocate receiving salary also should be treated as a practising advocate; Relying on R. 49 of the Bar Council of India Rules and the decision of the Apex Court in Sushma Suri's case (supra), the learned senior counsel contended that the appellant is a practising lawyer. She is appearing in the robes before the courts of law and is pleading the cases of the C.B.I So, she should be treated as an advocate, qualified to apply for the post of District and Sessions Judge, like any other advocate. Sri. KRB. Kaimal, learned senior counsel, reiterated the contentions of the 1st respondent which are already mentioned above and supported the decision of the learned single Judge.

9. Annexure-RII is C.B.I (Legal Advisers and Prosecutors) Recruitment Rules, 20.02 It is issued by the President of India, in exercise of the powers under the proviso to Art. 309 of the Constitution of India, in supersession of the C.B.I (Additional Legal Adviser) Recruitment Rules, 1984, the C.B.I (Deputy Legal Adviser) Recruitment Rules, 1975 and the C.B.I (Prosecutions Staff)) Recruitment Rules, 1980. As per the Recruitment Rules of 2002, the post of Public Prosecutor is a Group Agazetted non-ministerial post in the scale of pay of Rs. 8000–275-13500. The age limit for appointment is 35 years, which is relaxable for Government Servants. It would show that not only practising advocates, but Government Servants are also eligible for appointment, provided they had a. Degree in Law and had seven years’ practice at the Bar in conducting criminal cases. The Rules further provide that it is a pensionable service under the Central Civil Services (Pension) Rules, 1972.

10. Art. 309 of the Constitution of India reads as follows:

“309. Recruitment and conditions of service of persons serving the Union or a State:— 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 person 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 inconnection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act”.

11. The President of India has framed the Recruitment Rules to the post held by the appellant in exercise of the power under the above proviso. So, it is clear that the post of Public Prosecutor in the C.B.I is a post in connection with the affairs of the Union. In other words, the appellant, who is appointed to that post, is a member of the service in connection with the affairs of the Union. Such a person is ineligible to be appointed as a District Judge. The same is clear from Art. 233(2), which reads as follows:

“233. Appointment of District Judges:— (1) …………………

(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.”

(Emphasis supplied)

12. In view of the above constitutional bar, the appellant, who is holding-a civil post under the Union of India, is barred from being considered for appointment to the post of District Judge.

13. The above legal position will seal the fate of the appellant. The appellant has buift up a case, relying on the unamended provisions of R. 49 of the Bar Council of India Rules. R. 49 of Chapter II, Part VI of the Bar Council of India Rules, as it stands now, reads as follows:

“49. An advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practise, and shall, on taking up any employment, intimate the fact to the Bar Council on whose roll his name appears, and shall thereupon cease to practise as an advocate so long as he continues in such employment”.

14. Up to 22.6.2001, the following provisions were also part of the above Rule:

“Nothing in this rule shall apply to a Law Officer of the Central Government 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 S. 28(2)(d) read with S. 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 terms appointment and who, by the said terms, is required to act and/or plead in courts on behalf of his employer.”

(Emphasis supplied)

15. Interpreting the above deleted portion of R. 49, Sushma Sun's case was decided by the Apex Court, The said decision was explained by the Apex Court in Satish Kumar Sharma's case ((2001) 2 SCC 365 : AIR 2001 SC 509). Considering those decisions, the Division Benchof this Court in Biji v. Registrar, High Court of Kerala (2001 (3) KLT 99) held that an Assistant Public Prosecutor under the Kerala Government is not eligible to apply for the post of Munsiff-Magistrate. We feel that it is unnecessary to refer to the above decisions in detail, since, as per the present rule position, a full time salaried employee is ineligible to be enrolled as an advocate, as defined under S. 2(1)(a) of the Advocates Act, which reads as follows:

“‘advocate’ means an advocate entered in any roll under the provisions of this Act.”

16. While practising as an advocate, the appellant joined the service of the Union of India as a full time salaried employee. Therefore, even if she has failed to intimate the Bar Council about her taking up employment and consequently to suspend her enrolment, still she cannot be treated as an advocate on the rolls of the Bar Council of Kerala. A person holding the post now held by the appellant in the C.B.I, is not eligible to be enrolled by the Bar Council of Kerala, unless he resigns from the post. This is evident from the provisions contained in Chap. V of the Bar Council of Kerala Rules, 1979. R. 2 of this Chapter says that the application for enrolment under S. 24 of the Act shall be filed with the Secretary in Form No. 2. Column 15 of Form No. 2 reads as follows:

“State whether the applicant is employed or engaged in any profession, trade or calling on the date of application”.

17. Column 16 reads as follows:

“If he was employed or engaged otherwise, give particulars as to when and where he was relieved from such employment (Relieving order shall be produced).”

18. So, it is evident that the appellant could not have got enrolled, if she moved for enrolment while working as a Public Prosecutor in the C.B.I This was the position, as explained by the Apex Court in Satish Kumar Sharma's case ((2001) 2 SCC 365 : AIR 2001 SC 509), even before the amendment to R. 49 of the Bar Council of India Rules mentioned above. Thus, in any view of the matter, the appellant's application was rightly rejected and the impugned communication Ext. P 13 was issued to her validly. We find nothing wrong with the judgment of the learned Single Judge. We fully endorse the reasons and conclusions in the judgment under appeal. In the result the Writ Appeal fails and it is dismissed.