Order
1. Application for impleadment/intervention is allowed. We need not go in details of the matter.
2. These are appeals against the High Court to the claim of the appellants herein nine in number who applied for the posts of direct District Judges and were not considered for the posts on the ground that they were holding the government posts and they had also not put in seven years of practice as an advocate. The appellants challenged this and the High Court has repelled ILR 2002 KAR 2093, (2002) 4 Kant LJ 76 the challenge taking the view that the appellants were the government servants holding regular posts of Assistant Public Prosecutors and Public Prosecutors, etc. and they were on the regular panel of the Government and were also members of the regular cadre.
3. The High Court formulated two points. They are as under: (ILR p. 2103, para 9)
“(1) Whether Petitioners 1 to 9 were practising advocates on the date of the submission of their applications to the first respondent and as such were eligible to be considered for appointment as District Judges in terms of the qualification prescribed under the Schedule given to Rule 2 of the Rules?
(2) Whether the qualification prescribed in the Schedule given to Rule 2 of the Rules that an applicant ‘must be practising on the last date fixed for submission of application as an advocate and must have so practised for not less than seven years as on such date’ is liable to be struck down either on the ground that it runs counter to the provisions contained in clause (2) of Article 233 or Article 14 of the Constitution of India?”
4. On the first question the High Court came to the conclusion that the appellants were not practising advocates on the date of submission of their applications as was required by the advertisement. The High Court also came to the conclusion that the appellants had not completed seven years of practice as “advocate”. After considering the Rules concerned as also the provisions of Article 233(2), we have no hesitation in holding that since the appellants were members of the regular government service having been regularly employed under the State Government Rules called “the Karnataka Department of Prosecution and Government Litigation Recruitment Rules, 1962” they could not be said to be the advocates while serving as Assistant Public Prosecutors or Public Prosecutors.
5. Shri Ramasesh, learned counsel appearing for the appellants tried to rely on Rule 49 of the Bar Council of India Rules and submitted that under the second part of that Rule since the appellants were doing the duty of advocate they would be covered in the exception culled out in the second part of the Rule. This contention is clearly incorrect. There is nothing in the Karnataka Department of Prosecution and Government Litigation Recruitment Rules, 1962 suggesting that the persons selected and working therein would be acting as the advocates before the courts. On the other hand it is clear that the Public Prosecutors have some other duties under which they are required to work as the Director, Prosecutions and in that role they are not required or they cannot appear before the court. Therefore, the question of application of Rule 49 and more particularly the exception therein would not be applicable in the case of the present appellants. We have seen from the impugned judgment ILR 2002 KAR 2093, (2002) 4 Kant LJ 76 that the appellants specifically agreed that they were the government servants and in that view their consideration is clearly barred under Article 233(2) of the Constitution.
6. Shri Ramasesh, learned counsel tried to rely on Sushma Suri v. Govt. (NCT of Delhi) (1999) 1 SCC 330. We do not think that the judgment is of any help to the appellants. In that case while considering Rule 49 this Court had come to the conclusion that the appellants therein though were appointed as “Assistant Government Advocates” were actually doing the duty as the advocates as covered by Rule 49. We have already pointed out the non-application of Rule 49 to the facts of this case. In that view the judgment is of no consequence. It is also the admitted position that eight of the appellants had surrendered their licence to practice before the Bar Council when they entered the service which is clearly indicative of the fact that they were not the advocates and as such were beyond the area of consideration.
7. The High Court has relied upon the observations made by this Court in Satish Kumar Sharma v. Bar Council of H.P (2001) 2 SCC 365 The Court has referred to the facts pertaining to the full employment of the appellant therein. In para 17 the Court observed as under:
“17. Looking to the various appointment/promotion orders issued by the Board to the appellant and regulation of business relating to Legal Cell of the Board aforementioned, we can gather that:
(1) the appellant was a full-time salaried employee at the time of his enrolment as an advocate and continues to be so, getting fixed scales of pay;
(2) he is governed by the conditions of service applicable to the employees of the Board including disciplinary proceedings. When asked by us, the learned counsel for the appellant also confirmed the same;
(3) he joined the services of the Board as a temporary Assistant (Legal) and continues to head the Legal Cell after promotions, a wing in the Secretariat of the Board;
(4) his duties were/are not exclusively or mostly to act or plead in courts; and
(5) promotions were given from time to time in higher pay scales as is done in case of other employees of the Board on the basis of recommendation of Departmental Promotion Committee.”
8. On that basis the Court in Satish Kumar Sharma case (2001) 2 SCC 365 came to the conclusion that the appellant therein was not liable to be considered as he was holding a regular post. In para 19 it was observed:
“19. … These orders clearly show that the appellant was required to work in the Legal Cell of the Secretariat of the Board; was given different pay scales; rules of seniority were applicable; promotions were given to him on the basis of the recommendations of the Departmental Promotion Committee; was amenable to disciplinary proceedings, etc. Further looking to the nature of duties of Legal Cell as stated in the regulation of business of the Board extracted above, the appellant being a full-time salaried employee had/has to attend to so many duties which appear to be substantial and predominant. In short and substance we find that the appellant was/is a full-time salaried employee and his work was not mainly or exclusively to act or plead in court. Further, there may be various challenges in courts of law assailing or relating to the decisions/actions taken by the appellant himself such as challenge to issue of statutory regulation, notification or order, construction of statutory regulation, statutory orders and notifications, the institution/withdrawal of any prosecution or other legal/quasi-legal proceedings, etc. In a given situation the appellant may be amenable to disciplinary jurisdiction of his employer and/or to the disciplinary jurisdiction of the Bar Council. There could be conflict of duties and interest. In such an event, the appellant would be in an embarrassing position to plead and conduct a case in a court of law. Moreover, mere occasional appearances in some courts on behalf of the Board even if they be, in our opinion, could not bring the appellant within the meaning of ‘Law Officer’ in terms of Para 3 of Rule 49.”
and has also taken a view that in a situation like this the decision in Sushma Suri case (1999) 1 SCC 330 is not applicable. We have no reason to take any different view, as had already been taken by this Court, as the situation is not different. It is already considered by the High Court that the appellants were holding a regular post, they were having the regular pay scale, they were considered for promotion, they were employed under the State Government Rules and therefore they were actually the government servants when they made applications for the posts of District Judges.
9. In view of the fact that we are taking this view, we need not consider the other contention that the qualifications in the advertisement were contrary to Article 233(2) which was rightly not pressed seriously. The appeals have no merit and the same are dismissed without costs.