Bombay High Court
Sunanda Bhimrao Chaware & Ors vs The High Court Of Judicature At ... on 17 October, 2012
Bench: Dr. D.Y. Chandrachud, V.M. Kanade, A.A. Sayed
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
WRIT PETITION NO.1916 OF 2011
WITH
CIVIL APPLICATION NO.1720 OF 2012
Sunanda Bhimrao Chaware & Ors. ...Petitioners.
Vs.
The High Court of Judicature at Bombay. ...Respondent.
....
Mr.Anil Anturkar with Mr.Amol Ghatne and Mr.Sugandh Deshmukh i/b. Mr.
P.R. Katneshwarkar for the Petitioners.
Mr.Venkatesh R.Dhond, Senior Advocate with Mr.Sanjay Udeshi i/b.
M/s.Sanjay Udeshi & Co. for the Respondents.
.....
CORAM : DR.D.Y.CHANDRACHUD,
V.M. KANADE AND
A.A. SAYED, JJJ.
October 17, 2012.
JUDGMENT (PER DR.D.Y.CHANDRACHUD, J.) :
The reference to the Full Bench and the Petitions:
The reference to the Full Bench has been made on 16 June 2011
by a Division Bench of this Court. The petition under Article 226 of the
Constitution,1 out of which the reference arises, has been instituted by six
Assistant Public Prosecutors, who are on full time salaried employment with
the Government of Maharashtra. They assert that they are eligible to be
appointed as District Judges under Article 233(2) of the Constitution.
1 Sunanda w/o Bhimrao Chaware & Ors. vs. The High Court of Judicature at
Bombay, W.P. 1916 of 2011 (Original Writ Petition 1537 of 2011 transferred
from Aurangabad Bench)
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2. The Petitioners were appointed as Assistant Public Prosecutors
on diverse dates between 26 February 2002 and 23 March 2009. The High
Court of Judicature at Bombay issued an advertisement by which applications
were invited from eligible candidates for seventeen vacancies in the post of
District Judges in the judicial service of the State of Maharashtra in the pay
scale of Rs.51550-1230-58930-1380-63070 + dearness allowance and other
allowances as admissible under the Rules. The criteria of eligibility among
other requirements was to the following effect:
"2) A candidate must be -
(a)
a holder of Degree in Law
(b) practising as an Advocate in the High Court or Courts
subordinate thereto for not less than seven years on the date of
publication of Advertisement and in computing the period during
which a candidate has been an Advocate there shall be included
any period during which he has held the post of a Public
Prosecutor or Government Advocate or Judicial Officer.
Must be working or must have worked as Public
Prosecutor or Government Advocate for not less than 7 years in
the post or posts on the date of publication of advertisement. In
computing the period of 7 years, the period during which the
candidate has worked as an Advocate shall also be included.
Provided that a full time salaried Public Prosecutor,
Assistant/Additional Public Prosecutor, Law Officer of the Central
Government or State Government or of any Public Corporation or
Body constituted by Statute, would not be eligible for the post of
District Judge." (emphasis supplied)
The criteria of eligibility, including the proviso are based on similar provisions
governing the appointment of District Judges in Maharashtra Judicial Service
Rules, 2008 as emended in 2010.
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3. The Petitioners have challenged the proviso, extracted above, on
the ground that it is unreasonable and without nexus to the object sought to
be achieved. The submission of the Petitioners is that as a result of the
proviso, a full time salaried public prosecutor or Assistant Public Prosecutor
who is entrusted with the duties of pleading or arguing on behalf of the
Government in a court is deprived from competing for the post. This
according to them, amounts to a hostile discrimination in violation of Articles
14 and 16 of the Constitution. According to the Petitioners, Article 233 of the
Constitution envisages that a person not already in service of the Union of
India or of the State shall be eligible to be appointed as a District Judge if he
has been, for not less than seven years, an Advocate or Pleader and is
recommended for appointment by the High Court. The Petitioners submit that
the expression "Advocate and Pleader" is wide enough to include the post of a
full time Assistant Public Prosecutor. The Petition was amended to challenge
the aforesaid proviso, contained in Chapter III, Rule 5, Column 4 of the
Maharashtra Judicial Services Rules, 2008. According to the Petitioners, the
provision is contrary to Article 233(2) of the Constitution and the law laid down
by the Supreme Court in Sushma Suri vs. Govt. of National Capital
Territory of Delhi.2 The Petitioners have also challenged the corresponding
condition in the advertisement published on behalf of the High Court while
inviting applications for recruitment.
4. When the Petition came up before the Division Bench, Counsel for
the High Court placed reliance on an unreported decision of this Court in
2 (1999) 1 SCC 330
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Ayub S. Pathan v. High Court of Judicature at Bombay.3 The Division
Bench noted that in that case, the Petitioners, who had a law degree and
were in the service of the Government of Maharashtra as salaried Public
Prosecutors had challenged the advertisement dated 18 February 2011. The
Petition was dismissed by the Division Bench holding that public prosecutors
who are in full time employment form a different class and are, therefore, not
eligible for being considered for the post of District Judge. The Division
Bench which has made the present reference held that the judgment in
Sushma Suri (supra) was not cited before the Division Bench in Ayub
Pathan's case and consequently, the decision rendered by the Division
Bench of this Court requires reconsideration. The view of the Division Bench
was that the case of the Petitioners is squarely covered by the decision of the
Supreme Court in Sushma Suri.
5. Another Writ Petition under Article 226 of the Constitution 4 has
been filed before this Court by two full time and salaried Assistant Public
Prosecutors in order to challenge the same provision contained in the Judicial
Services Rules and in the advertisement issued by the High Court. Both the
Petitions have, by the administrative directions of the Hon'ble the Chief
Justice, been clubbed together for hearing before the Full Bench. Both the
Petitions have, by consent been taken up for hearing and final disposal,
Counsel on both sides having argued both the petitions in their entirety.
6. The issue which has been raised before the Full Bench by the
3 Writ Petition 1849 of 2011 decided on 3 March 2011
4 Manisha Damodar Bagle vs. The State of Maharashtra, WP 6125 of 2012
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referring judgment relates to the correctness of the judgment of the Division
Bench of this Court in Ayub Pathan's case (supra).
Article 233 of the Constitution :
7. Article 233 of the Constitution provides 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) provides for the modes of recruitment of District Judges. The
first mode is from persons who are in the judicial service of the Union or of the
State. The expression "already in the service of the Union or of the State" has
been interpreted by the Supreme Court to mean judicial service. 'Service'
does not mean any service but judicial service. The second mode of
recruitment is from the Bar, of persons who have practised for at least seven
years as advocate or pleader. The expression "service" in Article 233(2) had
been held in the earlier decisions in Chandra Mohan vs. State of U.P.5 and
Satya Narain vs. High Court of Judicature at Allahabad, 6 to mean judicial
service.
The Advocates Act, 1961 :
8. Section 24 of the Advocates Act, 1961 provides for persons who
5 AIR 1966 SC 1987
6 (1985) 1 SCC 225
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may be admitted as advocates on a state roll. Sub-section (1) of Section 24
stipulates that subject to the provisions of the Act and the Rules, a person
shall be qualified to be admitted as an advocate on a state roll, if such a
person is a citizen of India, has completed twenty-one years of age and has
obtained a degree in law of the nature specified. Certain conditions are
contained in clauses (a), (b) and (c ) of sub-section (1). In addition, clause
(e) of Sub-section (1) of Section 24 requires a person to fulfill such other
conditions as may be specified in the rules made by the State Bar Council
under the Chapter. The State Bar Councils are hence empowered to
prescribe the conditions subject to which a person is qualified to be admitted
as an Advocate on a state roll. Section 28(1) confers power on the State Bar
Council to make rules to carry out the purposes of the Chapter. Clause (d) of
Sub-section (2) provides that in particular, and without prejudice to the
generality of this power, the rules may provide, among other things, for "the
conditions subject to which a person may be admitted as an advocate on any
such roll".7
9. Section 49 deals with the general power of the Bar Council of
India to make rules. Sub-section (1) of Section 49 provides that the Bar
Council of India may make rules for discharging its functions under the Act. In
particular, the rules framed by the Bar Council of India may prescribe for the
matters enunciated in the several clauses that follow. Clause (ah) deals with
the conditions subject to which an advocate shall have the right to practise
and the circumstances under which a person shall be deemed to practise as
7 Section 28(2)(d)
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an advocate in a court.
10. Section 24 governs who may be enrolled as an advocate. Section
28 empowers the State Bar Councils to make rules regarding the conditions
on which persons may be admitted as advocates on State rolls. Sections
29, 30 and 33 deal with the right to practise. Under Section 49(1)(ah), the
rules framed by the Bar Council of India govern the conditions subject to
which an advocate may practise.
11.
In exercise of the powers conferred by Section 28(2)(d) read with
Section 24(1)(e), the Bar Council of Maharashtra made rules which were
published in the Maharashtra Government Gazette on 1 November 1962.
Those rules inter alia provided as follows:
"1. A person who is otherwise qualified to be admitted as an
Advocate but is either in full or part-time service or employment or
is engaged in any trade, business or profession shall not be
admitted as an Advocate:-
Provided however that this rule shall not apply to -
(i) Any person who is a Law Officer of the Central Government or
the Government of a State;
(ii) Any person who is an Articled clerk of an Attorney;
(iii) Any person who is an assistant to an Advocate or to an
attorney who is an Advocate;
(iv) Any person who is in part-time service as a Professor,
Lecturer or Teacher-in-law;
(v) Any person who by virtue of being a member of a joint Hindu
family has an interest in a joint Hindu family business, provided he
does not take part in the management thereof; and
(vi) Any other person or class of persons as the Bar Council may
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from time to time exempt.
2. Every person applying to be admitted as an Advocate shall
in his application make a declaration that he is not in full or part-
time service or employment and that he is not engaged in any
trade, business or profession. But in case he is in such full or
part-time service or employment or is engaged in any trade,
business or profession, he shall in the declaration disclose full
particulars of his service, employment or engagement. He shall
also undertake that if, after his admission as an Advocate, he
accepts full or part-time service or employment or is engaged in
any trade, business or profession disqualifying him from
admission he shall forthwith inform the Bar Council of such service
or employment or engagement and shall cease to practise as an
Advocate."
Hence, under the rules framed by the Bar Council of Maharashtra, a person
who is either in full-time or part-time service or employment or is engaged in
any trade, business or profession is not entitled to be admitted as an advocate
even though he or she is otherwise qualified. The proviso to Rule 1 lifted the
embargo in certain stipulated cases. Among them in clause (i) was a person
who is a Law Officer of the Central Government or the Government of a State
and in clause (vi) any other person or class of persons as the Bar Council
may from time to time exempt. An applicant seeking admission as an
advocate is required to make a declaration that he is not in full time or part-
time service or employment and does not engage in any trade, business or
profession. An undertaking is required to be furnished that the applicant, after
his admission as an advocate, shall, if he accepts full time or part-time service
or engages in any trade, business or profession disqualifing him from
admission, forthwith inform the Bar Council and shall cease to practise as an
advocate.
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12. The Bar Council of India has framed rules governing Advocates.
Chapter II is titled as 'standards of professional conduct and etiquette'. Rule
49 is in the following terms:
"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 such
employment intimate the fact to the Bar Council on whose rolls
his name appears, and shall thereupon cease to practise as an
Advocate so long as he continues in such employment.
Nothing in this rule shall apply to a Law Officer of the Central
Government or the Government of a State or of any public
Corporation or body constituted by State who is entitled to be
enrolled under the rules of his State Bar Council made under
Section 28(2)(d) read with Section 24(1)(e) of the Act despite his
being a full time salaried employee.
Law Officer for the purpose of this Rule means a person who is so
designated by the terms of his appointment and who by the said
terms, is required to act and/or plead in Courts on behalf of his
employer."
The substantive part of Rule 49 contains a prohibition on an advocate, so long
as he continues to practise on being a full-time salaried employee of any
person, government, firm, corporation or concern. Upon taking such
employment, an intimation has to be furnished to the Bar Council on whose
rolls the name of the Advocate appears and the Advocate shall thereupon
cease to practise as an Advocate so long as he or she continues in such
employment. However, the subsequent part of Rule 49 as originally enacted,
lifted the embargo by carving out an exception in the case of a Law Officer of
the Central Government or of the Government of a State or of any public
corporation or body constituted by the State. But the lifting of the embargo
was made conditional on such an Advocate being entitled to be enrolled
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under the Rules of his or her State Bar Council made under Section 28(2)(d)
read with Section 24(1)(e) despite his being a full time salaried employee. In
other words, it was only if the rules framed by the State Bar Council permitted
a full time salaried Law Officer of the Central or State Governments or of any
public corporation or body constituted by the State to be enrolled that the
protection under Rule 49 became available. The second paragraph of Rule
49 as it then stood, was an enabling provision. The first part of Rule 49
contained a bar on an advocate being a full time salaried employee of a
person, firm, government, corporation or concern. The second paragraph of
Rule 49 made an enabling provision to except full time salaried law officers (of
the description stated) if the rules of the State Bar Council permitted the
enrollment of such persons. If the rules of the State Bar Council did not so
provide, the exception was not attracted and the general bar would continue
to apply. The expression "Law Officer" for the purposes of the rule was
defined to mean a person who is so designated by the terms of his
appointment and who by the said terms, is required to act and/or plead in
Courts on behalf of his employer.
The judgments of the Supreme Court:
(i) Sushma Suri's case:
13. In Sushma Suri vs. Government of National Capital Territory
of Delhi,8 the High Court had invited applications from candidates who had
practised as advocates for recruitment to the Delhi Higher Judicial Service.
The Appellant claimed that she had more than seven years experience as an
8 (1999) 1 SCC 333
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advocate when she filed the application. She was an advocate on record in
the Supreme Court and after initial appointment as an Assistant Government
Advocate, was promoted thereafter as Additional Government Advocate in
the Supreme Court. The High Court dismissed the Petition questioning the
decision not calling her for an interview, relying on a decision in Oma
Shanker Sharma v. Delhi Administration,9 where it had been held that
while public prosecutors and government counsel may not cease to be
advocates for the purposes of the Advocates Act, 1961, they are not members
of the Bar. The rules of recruitment framed under Article 309 contemplated
recruitment by selection from persons in the Delhi Judicial Service as well as
by direct recruitment from the Bar. Since the Appellant was not in Judicial
Service, the only issue which arose was whether she was an advocate for the
purposes of Article 233(2) and from the Bar as envisaged in the Recruitment
Rules. The Supreme Court held that the meaning of the expression
"advocate or a pleader" in Article 233(2) would have to be construed from the
provisions of the Advocates Act and the Rules framed by the Bar Council.
After adverting to the provisions of Rule 49 of the rules framed by the Bar
Council of India, the Supreme Court held that for the purposes of the
Advocates Act and the Rules framed thereunder, a Law Officer (public
prosecutor or government counsel) would continue to be an advocate and that
the intention of the Service Rules was that a candidate eligible for
appointment to the Higher Judicial Service should be a person who regularly
practises before a Court or Tribunal appearing for a client. The Supreme
Court held as follows:
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"A Government Counsel may be a Public Prosecutor or
Government Advocate or a Government Pleader. He too gets
experience in handling various types of cases apart from dealing
with the officers of the Government. Experience gained by such
persons who fall in this description cannot be stated to be
irrelevant nor detrimental to selection to the posts of the Higher
Judicial Service. The expression "members of the Bar" in the
relevant Rule would only mean that particular class of persons
who are actually practising in courts of law as pleaders or
advocates. In a very general sense an advocate is a person who
acts or pleads for another in a court and if a Public Prosecutor
or a Government Counsel is on the rolls of the Bar Council
and is entitled to practise under the Act, he answers the
description of an advocate."10 (emphasis supplied)
The Supreme Court made a reference to the exception which was carved out
by the Bar Council of India Rules in the case of Law Officers of the
Government and corporate bodies in whose case, despite being a full-time
salaried employee, a Law Officer is required to act or plead in court on behalf
of others. The bar under the substantive provisions was held not be attracted.
In that context, the Supreme Court held thus:
"Under Rule 49 of the Bar Council of India Rules, an advocate
shall not be a full-time employee of any person, Government, firm,
corporation or concern and on taking up such employment, shall
intimate such fact to the Bar Council concerned and shall cease to
practise as along as he is in such employment. However, an
exception is made in such cases of law officers of the
Government and corporate bodies despite his being a full-
time salaried employee if such law officer is required to act or
plead in court on behalf of others. It is only to those who fall
into other categories of employment that the bar under Rule
49 would apply. An advocate employed by the Government or a
body corporate as its law officer even on terms of payment of
salary would not cease to be an advocate in terms of Rule 49 if
the condition is that such advocate is required to act or plead in
courts on behalf of the employer. The test, therefore, is not
whether such person is engaged on terms of salary or by payment
of remuneration, but whether he is engaged to act or plead on its
behalf in a court of law as an advocate. In that event the terms of
engagement will not matter at all. What is of essence is as to
10 At para 9 page 336
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what such law officer engaged by the Government does - whether
he acts or pleads in court on behalf of his employer or otherwise.
If he is not acting or pleading on behalf of his employer, then he
ceases to be an advocate. If the terms of engagement are such
that he does not have to act or plead, but does other kinds of
work, then he becomes a mere employee of the Government or
the body corporate. Therefore, the Bar Council of India has
understood the expression "advocate" as one who is actually
practising before courts which expression would include even
those who are law officers appointed as such by the Government
or body corporate."11 (emphasis supplied)
Consequently, the Supreme Court held that the expression "from the Bar" in
the recruitment rules would only mean a class or group of advocates
practising in courts of law. When the decision in Sushma Suri's case was
delivered, Rule 49 contained both the substantive prohibition on full time
salaried employment as well as the exception in favour of law officers of a
stated description.
(ii) Satish Kumar Sharma's case:
14. In Satish Kumar Sharma vs. Bar Council of Himachal
Pradesh,12 a bench of three learned judges of the Supreme Court construed
the provisions of Rule 49 of the Bar Council of India Rules. In that case, the
Appellant who had qualified with an LL.B. degree was appointed to the post of
a Legal Assistant by the State Electricity Board and was redesignated later as
a Law Officer in Grade II. The Electricity Board permitted the Appellant to act
as an Advocate on its behalf and undertook to bear his enrollment expenses.
Subsequent to the enrollment application, the designation of the Appellant
was changed to that of a Law Officer upon which the State Bar Council issued
11 At para 10 pages 336 & 337
12 (2001) 2 SCC 365
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a certificate of enrollment. The Appellant was promoted to a higher post. The
State Bar Council issued a notice to the Appellant to show cause as to why
his enrollment should not be cancelled and passed a resolution withdrawing
his enrollment. A Petition under Article 226 of the Constitution filed by the
Appellant having been dismissed by the High Court, the Appellant moved the
Supreme Court. The Supreme Court noted that the Appellant was a full-time
salaried employee at the time of his enrollment and continued to be so on
fixed scales of pay; he was governed by the conditions of service applicable
to the employees of the Electricity Board, including disciplinary proceedings;
upon joining services, he received promotions on the recommendation of a
Departmental Promotion Committee and his duties were not exclusively or
mostly to act or plead in Courts. Construing the provisions of Rule 49 of the
Bar Council of India Rules, the Supreme Court observed as follows:
"(i) The main and opening paragraph of the rule prohibits or bars
an advocate from being a full-time salaried employee of any
person, Government, firm, corporation or concern so long as he
continues to practice and an obligation is cast on an advocate who
takes up any such employment to intimate the fact to the Bar
Council concerned and he shall cease to practice so long as he
continues in such employment.;
(ii) Para 2 of the rule is in the nature of an exception to the
general rule contained in main and opening paragraph of it. The
bar created in para 1 will not be applicable to Law Officers of the
Central Government or a State or any public corporation or body
constituted by a statute, if they are given entitlement under the
rules of their State Bar Council. To put it in other way, this
provision is an enabling provision. If in the rules of any State Bar
Council, a provision is made entitling Law Officers of the
Government or authorities mentioned above, the bar continued in
Rule 49 shall not apply to such Law Officers despite they being
full-time salaried employees;
(iii) not every Law Officer but only a person who is designated
as Law Officer by the terms of his appointment and who by the
said terms is required to act and/or plead in courts on behalf of his
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employer can avail the benefit of the exception contained in para
2 of Rule 49."13
The Supreme Court referred to its earlier judgment in Haniraj L.Chulani (Dr)
v. Bar Council of Maharashtra and Goa, 14 where the Supreme Court dealt
with a right claimed by a medical practitioner to simultaneously practise the
profession of law with his medical profession. The Court held that the legal
profession requires full-time attention and cannot countenance an advocate
'riding two horses' or more at a time. The legal profession was held to require
an unflinching commitment and if a legal practitioner were to simultaneously
practise as a doctor, that would, it was held, infringe his duties as an officer of
the Court to perform to the best of his abilities in the administration of justice.
The Supreme Court noted that no rules were framed by the State Bar Council
of Himachal Pradesh entitling a Law Officer appointed as a full-time salaried
employee to enroll as an Advocate. Such an entitlement had to come from
the rules made under Section 28(2)(d) read with Section 24(1)(e) and it was
necessarily held to follow that if there is no rule in that regard, there is no
entitlement. The Supreme Court held that in the absence of an express or
positive rule in the rules framed by the State Bar Council, the exception
carved out in Rule 49 was not attracted and the bar in the substantive
provision would apply. Added to this, what the Supreme Court held was that
there was no indication in the orders of appointment or promotion that the
Appellant was to act or plead in courts of law mainly or exclusively. The
Appellant was subject to the pay scales prescribed by the Board; rules of
13 At para 18 pages 377 & 378
14 (1996) 3 SCC 342
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seniority were applicable; promotions were governed by the recommendations
of a Departmental Promotion Committee and he was amenable to disciplinary
proceedings. Subjecting the Appellant to the disciplinary jurisdiction of his
employer would, the Supreme Court held, result in a conflict of duties and
interest and the Appellant would be in an embarrassing position to plead and
conduct a case in a court of law. The submission of the Appellant was that
what was not prohibited under the Rules framed by the State Bar Council may
be taken as permitted. The Supreme Court rejected this submission holding
that it overlooked a positive requirement contained in the second part of Rule
49 that unless a State Bar Council has framed rules entitling law officers to
enroll as Advocates even though they are full-time employees, they are not
entitled to enrollment.
(iii) Mallaraddi Itagi's case:
15. Before the Supreme Court in Mallaraddi H.Itagi Vs. High Court
of Karnataka,15 the Appellants were holding regular posts of Assistant Public
Prosecutors and Public Prosecutors and were members of the regular cadre.
The Appellants applied for the post of District Judge and were not considered
on the ground that they were holding Government posts and had not put in
seven years of practice as an Advocate. Two questions were framed by the
High Court, namely:
"1. Whether the 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 Schedule given to Rule 2 of the Rules?
15 Civil Appeal Nos.947-956 of 2003 decided on 18 May 2009
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2. Whether the qualification prescribed in 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 Sub-Clause 2 of Article 233
of Article 14 of the Constitution of India?"
The Petition failed before the High Court. In appeal, the Supreme Court held
as follows:
"After considering the concerned Rules 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 "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."
The Supreme Court held that Rule 49, more particularly the exception would
not be applicable. The Appellants agreed that they were Government
servants and once that was so, the Supreme Court held that "in that view,
their consideration is clearly barred under Article 233(2) of the Constitution".
Once the exception to Rule 49 was not attracted, the judgment of the
Supreme Court in Sushma Suri (supra) was held not to be applicable.
Moreover, as a matter of fact, the Appellants had also surrendered their
licence to practise before the Bar Council when they entered service, which
was indicative of the fact that they were not Advocates and were beyond the
area of consideration.
The effect of the amendment of Rule 49:
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16. The decision in Satish Kumar Sharma's case was rendered on 3
January 2001. At a meeting held on 22 June 2001, the Bar Council of India
considered the views received from the State Bar Councils "in respect of (the)
deletion of the provision enabling the Law Officer to enroll as advocates in
Rule 49, Chapter II, Part-VI of the Bar Council of India Rules." The following
resolution was passed:
"RESOLVED that the Second and Third paras of Rule 49, Section
VII, Chapter II, Part VI of the Bar Council of India Rules providing
for enrollment of 'Law Officers' be and is hereby deleted as the
responses received from the majority of the Bar Councils are in
favour of deletion of the Rule."
On 22/25 December 2001, a clarificatory resolution was passed by the Bar
Council of India in the following terms :
"RESOLVED and further clarified that as the Supreme Court has
struck down the appearance by Law Officers in Court even on
behalf of their employers the Judgment will operate in the case of
all Law Officers. Even if they were allowed to appear on behalf of
their employers, all such Law Officers who are till now appearing
on behalf of their employers shall not be allowed to appear as
advocates. The State Bar Council should also ensure that those
Law Officers who have been allowed to practice on behalf of their
employers will cease to practice. It is made clear that those Law
Officers who after joining services obtained enrollment by reason
of the enabling provision cannot practice even on behalf of their
employers."16
Following the decision of the Bar Council of India, on 21 July 2002, the Bar
Council of Maharashtra and Goa resolved thus :
"In furtherance of the Judgment of the Hon'ble Supreme Court and
the directions issued by the Bar Council of India, this House
RESOLVED that the Office should communicate to all the Bar
Associations and District Courts about the Implementation and
strict compliance of those directions and copies of this resolution
16 B.C.I. Resolution No.156 of 2001
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as well as Supreme Court citation also be sent.
Explanation : In view of the above Resolutions, the proviso to
Rule 1 of the Bar Council of Maharashtra and Goa framed under
Section 28(2)(d) read with Section 24(1)(e) of the Advocates Act,
1961, allowing Law Officers to appear as Advocates, is deleted." 17
Consequent on the amendment to Rule 49 of the Bar Council of India Rules,
the rule in its present form reads as follows:
"An Advocate shall not be a full-time salaried employee of any
person, government, firm, corporation or concern, so long as he
continues to practise and shall, on taking up any such
employment intimate the fact to the Bar Council on whose rolls his
name appears and shall thereupon cease to practise as an
Advocate so long as he continues in such employment."
17. The consequence that follows from the deletion of the second and
third paras of Rule 49 of the Bar Council of India Rules is plain. As it originally
stood, Rule 49 contained a prohibition on an advocate being a full-time
salaried employee of any person, Government, firm, corporation or concern,
so long as he continues to practise. Upon taking any such employment, an
advocate was required to intimate the fact to the Bar Council on whose rolls
his name appears and thereupon would cease to practise as an advocate so
long as he continues to remain in such employment. However, the second
para of Rule 49 carved out an exception in the case of a Law Officer of the
Central Government or the Government of a State or of any public corporation
or body constituted by the State provided such a person was entitled to be
enrolled under the Rules made by the concerned State Bar Council under
Section 28(2)(d) read with Section 24(1)(e), despite being a full-time salaried
17 B.C.I. Resolution No.181 of 2002
VBC 20/59 wp1916.11-FB
employee. The expression "Law Officer" was defined to mean a person who
is so designated by the terms of appointment and who by the terms of
appointment is required to act or plead in Courts on behalf of the employer.
The exception which was carved out by the second para of Rule 49 has now
been deleted by the resolution of the Bar Council of India. Consequently,
Rule 49 which prohibits an advocate from being a full time salaried employee
of a person, government, firm, corporation or concern, remains without any
exception. Furthermore, if an advocate accepts such a full-time salaried
employment, he or she will thereupon cease to practise as an advocate so
long as such employment continues.
Maharashtra Judicial Service Rules, 2008:
18. The Maharashtra Judicial Service Rules, 2008, have been framed
in exercise of the powers conferred by Articles 233 and 234 of the
Constitution and the proviso to Article 309 read with Article 235. The Full
Court of the High Court of Judicature at Bombay resolved on 24 August 2010
to approve of amendments to the Judicial Service Rules. The amendments
were notified by the State Government by a Gazette Notification dated 31
December 2010.
19. Rule 2(h) as substituted defines the expression "Public
Prosecutor" to mean "Additional and Assistant Public Prosecutors, but to not
include the full time and salaried public prosecutor". Similarly, for the
recruitment of District Judges, while stipulating an experience as a practising
advocate in the High Court or Courts subordinate thereto for not less than
VBC 21/59 wp1916.11-FB
seven years on the date of the publication of the advertisement, the amended
rules provide that while computing the period of practice as an advocate, the
period during which the applicant has held the post of Public Prosecutor or
Government Advocate or Judicial Officer shall be included. The proviso,
however, stipulates that a full-time salaried public prosecutor, Assistant or
Additional Public Prosecutor, Law Officer of the Central Government or State
Government or of any public corporation or body constituted by Statute shall
not be eligible for the post of District Judge.
Rule 5 in so far as is material provides as follows:
"5. Method of Recruitment, qualification and Age Limit - In
respect of each category of posts specified in column (2) of the
TABLE 'C' below, the method of recruitment and minimum
qualification, age limit, etc., shall be as specified in the
corresponding entries in columns (3) and (4), thereof, namely:-
TABLE 'C'
S.N. Cadre Method of Recruitment Qualifications, age limit, etc.
(1) (2) (3) (4)
1 District (a) 65% of the posts by Must have been in the cadre
Judge promotion from the cadre of of Senior Civil Judges after
Senior Civil Judges on the basis successful completion of
of the principle of merit-cum- officiating period.
seniority and passing a Must have been officiating as
suitability test. a Senior Civil Judge for at
least five years.
(b) 10% of the posts by
promotion strictly on the basis of
merit through limited
competitive examination from
amongst the Senior Civil
Judges.
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Provided that if any of the
posts could not be filled up from
this 10% quota for want of
eligible Judicial Officers, the
same shall be filled up by
regular promotion.
(c) 25% of the posts shall be (a) Educational qualification-
filled by nomination from Must hold a degree in Law.
amongst the eligible persons
practising as Advocates on the (b) Experience - Must be
basis of a written and viva-voce practising as an Advocate in
test conducted by the High the High Court or Courts
Court. subordinate thereto for not
less than 7 years on the date
of publication of the
ig advertisement and while
computing the period for
practising as an Advocate,
the period during which he
has held the post of Public
Prosecutor or Government
Advocate or Judicial Officer
shall be included;
OR
Must be working or must
have worked as Public
Prosecutor or Government
Advocate for not less than 7
years in the post or posts on
the date of publication of the
advertisement and while
computing the period of 7
years, the period during
which the candidate has
practised as an Advocate
shall be included:
Provided that a full
time salaried Public
Prosecutor,
Assistant/Additional Public
Prosecutor, Law Officer of
the Central Government or
State Government or of
any Public Corporation or
Body constituted by
Statute, shall not be
eligible for the post of
District Judge.
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Submissions :
21. The submissions which have been urged on behalf of the
Petitioners are as follows:
(i) Public Prosecutors are not in the employment of the State or the
Central Government and hence, Rule 49 of the Bar Council of India Rules
does not apply to them. The expression 'employment' in Rule 49 means a
contract of service and not a contract for service; the distinction between
those expressions being judicially recognized;
(ii) A Public Prosecutor is not related to the Government by a contract
of service. The contract between the Petitioners and the Government is a
contract for service and there is no relationship of master and servant;
(iii) That a Public Prosecutor is being paid a salary or is under the
administrative control of Government is irrelevant and the crucial test is
whether while discharging his duties in the Court room, he is under the
complete control of an external body such as his employer. If he is not under
such control, he is an advocate;
(iv) The Supreme Court has enunciated that a Public Prosecutor is
not an advocate for any one and his duty is not to somehow secure a
conviction. The duties of the Public Prosecutor are akin to those of a minister
of justice and on many occasions, he is required to act contrary to the wishes
of his employer;
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(v) The experience of seven years at the credit of the applicants
earned by them in the past is sufficient to describe them as persons, who
have been an advocate for not less than seven years within the meaning of
Article 233(2) of the Constitution;
(vi) The words "has been" used in Article 233(2) should be interpreted
to mean "was" or "had been" and it is not necessary that the applicant should
be an advocate on the date of the application. In other words, it would suffice
if the applicant has been an advocate some time in the past; 18
(vii) The judgment of the Division Bench in Ayub Pathan has misread
the judgment of the Supreme Court in Satish Kumar Sharma and
consequently does not reflect the correct position in law;
(viii) The Maharashtra Judicial Service Rules are violative of Article 14
of the Constitution because while a full-time salaried public prosecutor, who
is functioning on the criminal side, is made ineligible for the post of District
Judge, a Government Pleader who functions on the civil side is eligible. This
amounts to differential treatment between the same class of persons. A
discrimination has been made between a salaried full time public prosecutor
and a salaried full time government pleader.
18 During the course of the hearing, Mr.A,V,Anturkar, Counsel appearing on behalf of the
Petitioners has given up submissions iv and v and has stated before the Court that they
are not being pressed.
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Sections 24 and 25 of the Code of Criminal Procedure, 1973:
(i) Section 24: Public Prosecutors and Additional Public Prosecutors :
22. Section 24(1) of the Code of Criminal Procedure, 1973 provides
that for every High Court, the Central Government or the State Government
shall appoint a Public Prosecutor and may also appoint one or more
Additional Public Prosecutors for conducting in such Court, any prosecution,
appeal or other proceeding on behalf of the Central Government or State
Government, as the case may be. 19 Under Sub-section (3) of Section 24, for
every district, the State Government shall appoint a Public Prosecutor and
may also appoint one or more Additional Public Prosecutors. Under Sub-
section (4), the District Magistrate has to prepare a panel of names of
persons, in consultation with the Sessions Judge, who are, in his opinion, fit to
be appointed as Public Prosecutors or Additional Public Prosecutors for the
district. No person can be appointed by the State Government as a Public
Prosecutor or Additional Public Prosecutor for the district unless his name
appears in the panel of names prepared by the District Magistrate under Sub-
section (4).20 However, sub-section (6) stipulates that notwithstanding
anything contained in sub-section (5), where in a State there exists a regular
Cadre of Prosecuting Officers, the State Government shall appoint a Public
Prosecutor or an Additional Public Prosecutor only from among persons
constituting such Cadre. However, under the proviso if the State
Government is of the opinion that no suitable person is available in the cadre,
an appointment can be made from the panel of names prepared by the
19 The requirement of consultation with the High Court stands deleted in its
application to the State of Maharashtra.
20 Sub-section (5) of Section 24.
VBC 26/59 wp1916.11-FB
District Magistrate under sub-section (4). A regular cadre of Prosecuting
Officers is defined by explanation (a) to sub-section (6) to mean a cadre of
Prosecuting Officers which includes the post of a Public Prosecutor and which
provides for promotion of Assistant Public Prosecutors to that post. Under
sub-section (7), a person shall be eligible to be appointed as a Public
Prosecutor or an Additional Public Prosecutor only if he has been in practice
as an advocate for not less than seven years. A Special Public Prosecutor
can be appointed by the Central Government or the State Government for the
purpose of any case or class of cases, provided as stipulated in sub-section
(8), a person has been in practice as an advocate for not less than ten years.
(ii) Section 25: Assistant Public Prosecutors:
23. Section 25 of the Code of Criminal Procedure, 1973 makes a
distinct provision for the appointment of Assistant Public Prosecutors. Sub-
section (1) of Section 25 provides that the State Government shall appoint in
every district, one or more Assistant Public Prosecutors for conducting
prosecutions in the Courts of Magistrates. A similar power is conferred upon
the Central Government in sub-section (1A). Section 25(2) provides that save
as otherwise provided in sub-section (3), no Police Officer shall be eligible to
be appointed as an Assistant Public Prosecutor. Under sub-Section (3),
where no Assistant Public Prosecutor is available for the purpose of any
particular case, the District Magistrate is competent to appoint any other
person to be the Assistant Public Prosecutor in charge of that case. The
proviso, however, stipulates that a Police Officer shall not be so appointed, if
he has taken any part in the investigation into the offence with respect to
VBC 27/59 wp1916.11-FB
which the accused is being prosecuted or if he is below the rank of Inspector.
Maharashtra Law Officers Rules, 1984:
24. By a notification dated 15 November 1984, the Maharashtra Law
Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984
have been made in exercise of powers conferred by the proviso to Article 309
of the Constitution. The expression "Government Pleader" has been defined
to mean an advocate appointed to that post under the rules by Government
in the Law and Judiciary Department. Clauses (i) to (vii) provide for such
appointments being made in relation to the High Court at its principal seat and
at the Benches, the Bombay City Civil Court, the Court of Small Causes and
the Maharashtra Revenue Tribunal. The expression "Law Officer" is defined
as follows:
"(l) "Law Officer" means an advocate appointed by Government in
the Law and Judiciary Department, under these rules, to conduct
cases on behalf of the State or its officers before any court or the
Maharashtra Revenue Tribunal and includes an Advocate-
General, a Government Pleader and Public Prosecutor."
The expression "Public Prosecutor" is defined in Rule 2(n) as follows:
"(n) "Public Prosecutor" means an advocate appointed as a Public
Prosecutor by Government in the Law and Judiciary Department
under these rules for the High Court and for every district in the
State under sub-sections (1) and (3) of section 24 of the Code of
Criminal Procedure, for conducting any prosecution, appeal,
application or other proceedings on behalf of the State and
includes an Additional Public Prosecutor."
The definition of the expression "Public Prosecutor" under the rule does not
include an Assistant Public Prosecutor. Rule 3 provides that the rules shall
VBC 28/59 wp1916.11-FB
apply to a Government Pleader, Additional Government Pleader and Assistant
Government Pleader in the principal seat of the High Court and at the
Benches. In the Court of Session for Greater Bombay, Rule 3(e) provides
that the rules shall apply to a Public Prosecutor. Under Rule 3(h), for the
mofussil Courts, the rules apply to a District Government Pleader and a Public
Prosecutor for the District, the Additional or Assistant Government Pleader
and the Additional Public Prosecutor and the subordinate Government
Pleaders. Assistant Public Prosecutors are not brought within Rule 3.
25.
Rule 14 provides that it shall be the duty of the Government
Pleader or the Public Prosecutor to advise Government or its officers in
respect of proceedings, whether civil or criminal which he has or may have to
conduct on behalf of the State or its officers. The Government Pleader or
Public Prosecutor is also required to discharge such functions as are
expressly imposed upon him by the Code of Civil Procedure, the Code of
Criminal Procedure or by any other law for the time being in force. Thereafter,
the duties of a Government Pleader and of a Public Prosecutor are
specifically delineated. Rule 16 provides for the payment of a retainer to
Government Pleaders or Public Prosecutors. Rules 17 and 18 prescribe the
fees payable. Under Rule 29, the law officers are under the administrative
control of the Remembrancer of Legal Affairs in his capacity as ex-officio
Secretary to the Government in the Law and Judiciary Department. Under
Rule 30, all the law officers, except the Advocate General, hold office during
the pleasure of Government in the Law and Judiciary Department. Under
Rule 43, every law officer is bound by the provisions of the rules and such
VBC 29/59 wp1916.11-FB
other rules, orders or directions as Government in the Law and Judiciary
Department may make from time to time.
The Recruitment Rules of 1997:
26. By a notification dated 29 December 1997, made in exercise of
the powers conferred by the proviso to Article 309, the State Government
has framed Rules regarding recruitment to the posts of Deputy Directors,
Assistant Directors, Public Prosecutors and Additional Public Prosecutors
under the Home Department of the Government of Maharashtra. These
Rules are called the Deputy Director, Assistant Director, Public Prosecutor
and Additional Public Prosecutor (Group A) in the Directorate of Public
Prosecutions, Maharashtra State (Recruitment) Rules, 1997. Rule 4 provides
for appointment to the post, inter alia, of Public Prosecutor (Group-A) in the
Directorate of Public Prosecutions by promotion on the basis of selection from
amongst persons holding the post of Additional Public Prosecutor who have
served for a period of not less than three years on a regular basis in the
Directorate. Under Rule 5, a provision has been made inter alia for
appointment of Additional Public Prosecutors (Group-A) in the Directorate by
promotion on the basis of selection from persons holding the post of Assistant
Public Prosecutors who have served for a period of not less than five years on
a regular basis as prosecutors.
Rules governing Assistant Public Prosecutors:
27. Assistant Public Prosecutors are governed by separate rules
made under the proviso to Article 309, called the Assistant Public Prosecutor,
VBC 30/59 wp1916.11-FB
Group A, in Directorate of Public Prosecutions, Maharashtra State
(Recruitment) Rules, 1995. Rule 3 provides for appointment and is as follows:
"3. Appointment to the post of Assistant Public Prosecutor
in the Directorate shall be made by nomination from amongst the
persons who,-
-(i) are not more than 33 years, and in case of Backward Class,
38 years of age; and
-(ii) possess a degree in law;
-(iii) possess experience of working as an advocate in the High
Court or in a Court Subordinate thereto, for a period of not less
than five years:
Provided that the provisions of clauses (i) and (iii) shall not
apply to the persons working as Police Prosecutor in the service
of the Government"
The Maharashtra Public Service Commission is empowered by Rule 4 to relax
the condition of experience if a sufficient number of candidates possessing
the requisite experience are not available to fill up vacancies reserved for
candidates belonging to the Schedule Castes (including converts to
Buddhism), Schedule Tribes, Denotified Tribes or Nomadic Tribes. Under
Rule 5, a person appointed to the post by nomination is to be on probation for
a period of two years. Rule 6 stipulates that a person appointed to the post
shall be required to pass a departmental examination and examinations in
Hindi and Marathi according to the rules made in that behalf, unless
exempted. Rule 7 prescribes that a person appointed to the post shall be
liable for transfer anywhere in the State of Maharashtra. By an amendment
notified on 21 April 2009, the proviso to Rule 3 has been, deleted. A new
rule, Rule 6A, has been inserted to require a person appointed to the post of
VBC 31/59 wp1916.11-FB
Assistant Public Prosecutors to possess a certificate in "computer operation"
as prescribed by the Directorate of Information Technology of the State
Government from time to time.
The position of the Assistant Public Prosecutor :
28. The Law Commission of India in its fourteenth report of 26
September 1958 noted that in most of the states, prosecutors of the
magisterial courts were either police officers, who may or may not be legally
qualified or members of the Bar; but they all functioned as a part of the Police
Department.
The Report of the Law Commission noted that the Police
Department, being charged with the duty of maintaining law and order and
the responsibility of preventing and detecting offences, "it is naturally anxious
to secure convictions". The report stated thus:
"It is obvious that by the very fact of their being members of the
police force and the nature of the duties they have to discharge in
bringing a case to court, it is not possible for them to exhibit that
degree of detachment which is necessary in a Prosecutor. It is to
be remembered that a belief prevails among police officers that
their promotion in the department depends upon the number of
convictions they are able to obtain as prosecuting officers.
Finally, the only control or supervision of the work of these
prosecuting officers is that exercised by the departmental
officials."
The Law Commission recommended that the prosecuting agency should be
made independent of the Police Department so that the actual conduct of
prosecutions by an independent agency will result in a fairer and more
impartial approach by the prosecutor to the case. Consequently, the Law
Commission suggested that a Director of Public Prosecutions independent of
VBC 32/59 wp1916.11-FB
the Police Department, but directly responsible to the State Government,
should be appointed.
29. In S.B.Shahane vs. State of Maharashtra,21 the Supreme Court
noted the remedial measures suggested by the Law Commission:
"Firstly, it suggested that the Police Department shall not continue
as the prosecuting agency as the practice prevailed. Secondly,
the prosecuting agency must have its own prosecution
department separate and distinct from the Police Department, of
which it was a part. Thirdly, the Prosecutors of prosecution
departments must have their own heads who can exercise
administrative and disciplinary control over them being directly
responsible to the Government concerned."
In Shahane's case, Police Prosecutors appointed by the Inspector General of
Police or the Commissioner of Police in the State of Maharashtra under the
Bombay Police Manual became personnel of the State Police Department
under the control of the Inspector General of Police. The State Government
issued a notification on 1 April 1974 appointing Police Prosecutors to be
Assistant Public Prosecutors for conducting prosecutions in the Courts of
Magistrates without bringing about their severance from the Police
Department. This court dismissed a Petition seeking a direction to the State
for their exclusion from the Police Department so as to free them from the
administrative and disciplinary control of the Inspector General of Police and
to create a separate cadre of Assistant Public Prosecutors under a separate
Prosecution Department, making its head directly responsible to the
Government. The Supreme Court noted that as a rule Police Officers are
ineligible to be appointed as Assistant Public Prosecutors under Sub-section
21 AIR 1995 SC 1628
VBC 33/59 wp1916.11-FB
(2) of Section 25 and even sub-section (3) which carves out an exception,
ensures that such an officer should not be below the rank of Inspector, who
had not taken any part in the investigation into the offence with respect to
which the accused has to be prosecuted. The Supreme Court held as follows:
"The mandate of Sub-section (3), therefore, implies that the State
Government or Central Government which appoints Assistant
Public Prosecutors for the purpose of conducting prosecutions in
magistrates' Courts in District, must put them in an independent
cadre and create a separate independent Prosecution
Department, having its own hierarchy of officers made directly
responsible to the concerned Government.
Thus, when all the sub-sections of Section 25 of the
Code are seen as a whole, it becomes clear therefrom, that there
is a statutory obligation imposed on the State or the Central
Governments, as the case may be, to appoint one or more
Assistant Public Prosecutors in every district for conducting the
prosecutions in the Magistrates' courts concerned, and of making
such Assistant Public Prosecutors independent of the Police
Department or its officers entrusted with the duty of investigations
of cases on which prosecutions are to be launched in courts, but
constituting a separate cadre of such Assistant Public Prosecutors
and creating a separate Prosecution Department for them, its
head made directly responsible to the Government for such
department's work."
The State Government was directed to constitute a separate cadre of
Assistant Public Prosecutors either on a district-wise basis or on a state-wise
basis by creating a separate Prosecution Department for them and making
the head to be appointed for such Department directly responsible to the
State Government for their discipline and conduct of prosecutions. The
directions issued by the Supreme Court resulted in the separation of the cadre
of Assistant Public Prosecutors from the Police Department and constituting
the cadre under the administrative control of the Director of Public
Prosecutions.
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30. The Petitioners as Assistant Public Prosecutors are in the full time
salaried employment of the State of Maharashtra. Their conditions of service
are governed by the Rules framed under Article 309 of the Constitution.
Senior Counsel appearing on behalf of the High Court has placed on the
record a sample letter of appointment dated 3 August 2011 in respect of some
of the Petitioners. Among the conditions in the letter of appointment are that :
(i) The candidate would be on probation for a period of two years, subject to
extension, and confirmation in a regular capacity would be subject to
satisfactory completion of probation; (ii) During the period of probation, the
candidate would be entitled to salary in the pay scale of Rs.9,300-34,800 with
a Grade Pay of Rs.5,000/- with monthly emoluments of Rs.13,710/- plus
Rs.5,000/-. During probation, candidates would be eligible for the first
annual increment, whereas increments thereafter would be subject to
satisfactory completion of probation; (iii) The candidate would be entitled to
Dearness Allowance and other allowances; (iv) The candidate would be
subject to the rules applicable to officers on the establishment of the State
Government in Group-A and all the service rules would apply; and (v) The
candidates would be bound by all the other rules applicable to officers in the
Civil Service of the State. Initial appointments of these Assistant Public
Prosecutors on a full time and salaried basis are on probation. Both during
and after the probation, their pay scales are defined together with their
entitlement to allowances. They are subject, upon appointment, to rules of
service applicable to civil servants in Group-A and are governed by the
service rules which apply to other officers in Group-A employed in the service
VBC 35/59 wp1916.11-FB
of the State. Such full time Assistant Public Prosecutors in the employment of
the State are governed by the disciplinary jurisdiction of the State.
The role of the Public Prosecutors:
31. A Public Prosecutor in the discharge of his or her functions,
occupies a special position in the dispensation of criminal justice. A Public
Prosecutor is a vital element in the administration of criminal justice and has a
duty to act fairly towards the Court and the accused. A Public Prosecutor is
not engaged to secure a conviction at any cost. Prosecutions for criminal
offences involve the State in one of its most fundamental roles of securing
justice to society against those who are established, on appreciation of
evidence to have committed a crime beyond reasonable doubt. In the pursuit
of securing criminal justice by bringing to book those who have committed
crimes, the State acts as a guardian of the societal interest in ensuring that
crimes do not go unpunished. Punishment of crime is a basic element in the
duty of the State to provide conditions in which human beings can coexist in a
safe and secure environment. But the action of the State in administering
criminal justice impinges on the liberty of the subject who is proceeded
against on an allegation that he has committed a crime. The State cannot be
oblivious to either of those aspects. The first involves the protection of society
and the liberties of all those individuals constituting society to be secure in
their existence without the fear of their lives or property being disrupted by
criminal wrong doing. A wider societal interest inheres in the prosecution of
crime by the State. The protection of victims and the need to secure the
integrity of witnesses are important elements in that societal interest. The
VBC 36/59 wp1916.11-FB
second aspect, which is equally important, is the need to protect individual
personal liberties of those who are prosecuted for crime. Ordered liberty in a
democratic society postulates that punishment of crime must follow due
process of law which mandates a fair trial and a right of effective
representation. The role of the Public Prosecutor in the prosecution of crime
is of vital importance in the administration of criminal justice. That is how in
numerous cases, the Supreme Court has emphasised the importance of the
role of a Public Prosecutor.
32.
In a decision in Sidhartha Vashisth alias Manu Sharma vs.
State,22 the Supreme Court held that a Public Prosecutor appointed under
Section 24 of the Code of Criminal Procedure, 1973 holds a "statutory office
of high regard":
"....a Public Prosecutor has wider set of duties than to merely
ensure that the accused is punished, the duties of ensuring fair
play in the proceedings, all relevant facts are brought before the
court in order for the determination of truth and justice for all the
parties including the victims. It must be noted that these duties do
not allow the Prosecutor to be lax in any of his duties as against
the accused."23
33. In a recent judgment in Centre for Public Interest Litigation vs.
Union of India,24 the Supreme Court dealt with the provisions of Section 46
of the Prevention of Money Laundering Act, 2002 under which a person was
not qualified for appointment as a Public Prosecutor or a Special Public
Prosecutor unless he has been in practice as an Advocate for not less than
22 (2010) 6 SCC 1
23 At para 187 page 74
24 (2012) 3 SCC 117
VBC 37/59 wp1916.11-FB
seven years under the Union or a State. The Supreme Court held that the
expression 'under' in Section 46(2) had to be reasonably construed in a
manner which is consistent with the dignity of the office of the Public
Prosecutor and held as follows:
"A Public Prosecutor cannot be equated with a person who is
holding an office under the State. He cannot be treated as a
government employee. It may be that he should be a lawyer on
the government panel. However, the independence of the Public
Prosecutor from any governmental control is the hallmark of this
high office."25
The Supreme Court held that a Public Prosecutor "is really a minister of
justice and his job is none other than assisting the State in the administration
of justice and in fact he is not a representative of any party". The Supreme
Court noted that there is a public element involved in such an appointment
and in the appointment of a Public Prosecutor; the principle of master-servant
does not apply; that appointment not being an appointment to a civil post.
The Supreme Court consequently held that the requirement of a public
prosecutor being in practice for at least seven years under the Union or the
State in Section 46(2) could not be construed to mean that the Public
Prosecutor would be holding an employment under the State but only that he
or she should be a lawyer on the panel of either the State or Central
Government. Hence, the objection of the Union of India to the appointment of
a senior member of the Supreme Court Bar as a Special Public Prosecutor to
conduct a prosecution on behalf of the Central Bureau of Investigation and
Enforcement Directorate in the 2G Spectrum case was overruled.
25 At para 21 page 124
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34. In State of U.P. vs. U.P. State Law Officers' Association,26 an
order was passed by the State Government removing a group of Law Officers
working for the State in the High Court of Allahabad. In the case of all Law
Officers appointed in the High Court, the terms of appointment contain a
condition that notwithstanding the period for which they were appointed, they
could be removed at any time without assigning any reason. The High Court
set aside the appointment and directed the Government to continue the
engagement of "brief holders" which had been abolished. Allowing the
appeal, the Supreme Court held that none of the Law Officers had any right to
hold the office on the date of their removal even under the initial terms of
appointment which stipulated a contractual period. In the earlier part of the
judgment, while dealing with the evolution of the legal profession in India, the
Supreme Court noted that the nature of service rendered by lawyers was
private till the Government and the public bodies started engaging them to
conduct cases on their behalf. Such persons were engaged "purely on a
contractual basis either for a specified case or for a specified or an
unspecified period and though the contract in certain cases prohibited the
lawyers from accepting private briefs, the nature of the contract was not
altered from one of professional engagement to that of employment. The
lawyer of the Government or a public body was not its employee, but a
professional practitioner and this was not altered though the lawyers are on
full time rolls of the Government and are described as Law Officers. In this
background, the Supreme Court explained the reasons for Rule 49 of the Bar
26 (1994) 2 SCC 204
VBC 39/59 wp1916.11-FB
Council of India Rules which (at the material time) waived the prohibition
imposed by the rule against the acceptance by a lawyer of full time
employment, in certain cases .
35. In Samarendra Das vs. State of West Bengal,27 the issue before
the Supreme Court was whether the post of an Assistant Public Prosecutor
was a civil post under the State of West Bengal in terms of Section 15 of the
Administrative Tribunals Act, 1985. The Supreme Court noted that the
Recruitment Rules framed under the proviso to Article 309 of the Constitution
in 1974 to govern the services of Assistant Public Prosecutors showed that: (i)
An APP is a law officer on the establishment of the Legal Remembrancer
appointed by the State Government from among practising lawyers; (ii) An
APP is a whole time government servant appointed for conducting
prosecutions and is under the immediate control of a Divisional Magistrate;
(iii) The appointment is on probation; (iv) APPs are governed by the rules for
the time being in force applicable to persons holding appointments under the
State Government in matters of pay, allowances, leave, retirement, pension
and gratuity. The Supreme Court held that the recruitment rules indicate that
the post of an APP is a civil post so as to attract the jurisdiction of the State
Administrative Tribunal.
36. In the State of U.P. vs. Johri Mal,28 the Supreme Court, while
adverting to the Legal Remembrancer's Manual in the State of UP, noted a
distinction between the appointment of a Public Prosecutor or Additional
27 (2004) 2 SCC 274
28 (2004) 4 SCC 714
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Public Prosecutor, on the one hand, and an Assistant Public Prosecutor, on
the other thus :
"A distinction is to be borne in mind between appointment of a
Public Prosecutor or additional Public Prosecutor, on the one
hand, and Assistant Public Prosecutor on the other. So far as
Assistant Public Prosecutors are concerned, they are employees
of the State. They hold civil post. They are answerable for their
conduct to higher statutory authority. Their appointment is
governed by the service rules framed by the respective State
Governments. (See Samarendra Das v. State of W.B.)"29
The judgment of the Supreme Court makes a clear distinction between a
contractually appointed Public Prosecutor or District Government Pleader
and an Assistant Public Prosecutor who holds a civil post and is borne on the
establishment of the State Government. The Supreme Court noted that
Public Prosecutors or District Government Pleaders (who are in
contradistinction not employees of the State) retain the character of legal
practitioners for all intents and purposes and though they discharge public
functions and certain statutory powers, they do not hold a civil post. An
Assistant Public Prosecutor, on the other hand, who holds a civil post, is
answerable for his conduct to a higher statutory authority and is governed by
the service rules framed by the State Government.
The ineligibility of full time salaried Assistant Public Prosecutors for
appointment as District Judges:
37. The Bar Council of India when it made Rule 49, expressly
prohibited a member of the Bar from being a full time salaried employee of
any person, Government, firm, corporation or concern. The basic object
29 At para 38 page 734
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underlying the prohibition contained in Rule 49 is to protect the independence
and autonomy of an Advocate as a member of the legal profession. Rule 49
is postulated on the hypothesis that the acceptance of full time salaried
employment would be inconsistent with the duty of an Advocate to be a fair
and objective professional dedicated to subserving the cause of justice. The
second paragraph of Rule 49 carved out an exception in the case of Law
Officers of the Central Government or a Government of a State or of any
public corporation or body constituted by the State who was entitled to be
enrolled under the Rules of his State Bar Council despite being a salaried
employee. In Satish Kumar Sharma's case (supra) as the Supreme Court
noted, no rules were framed by the Bar Council of Himachal Pradesh entitling
a Law Officer appointed as a full time salaried employee to enroll as an
Advocate. In the absence of a rule framed by the State Bar Council, enabling
a Law Officer engaged in full time salaried employment to enroll as a member
of the Bar, the Supreme Court held that there would be no entitlement to
practice:
"It is an admitted position that no rules were framed by the
respondent entitling a Law Officer appointed as a full time salaried
employee coming within the meaning of para 3 of Rule 49 to enrol
as an advocate. Such an enrolment has to come from the rules
made under Section 28(2)(d) read with Section 24(1)(e) of the Act.
Hence, it necessarily follows that if there is no rule in this regard,
there is no entitlement. In the absence of express or positive rule,
the appellant could not fit in the exception and the bar contained
in the first paragraph of Rule 49, was clearly attracted as rightly
held by the High Court."30
The decision in Sushma Suri (supra) involved an interpretation of the
Delhi Higher Judicial Service Rules, 1970. Rule 7 provided for recruitment by
30 At para 19 page 378
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promotion on the basis of selection from members of the Delhi Judicial
Service, who had completed not less than ten years of service in the Delhi
Judicial Service and by direct recruitment from the Bar. 31 The judgment of
the Supreme Court notes that while Rule 49 prohibited an Advocate from
taking up full time employment, an exception was made in the case of Law
Officers of the Government and corporate bodies. Hence, so long as the
exception held the field, the bar under Rule 49 would apply only to those who
fell into other categories of employment. In the State of Maharashtra, in
pursuance of the enabling provisions contained in Rule 49 in its unamended
form, the State Bar Council had made a specific exception in regard to Law
Officers of the stated description. The Bar Council of India removed the
exception while retaining the prohibition contained in the first paragraph of
Rule 49 by its resolution dated 22 June 2001. The effect of the amendment
and the consequential modification of the rules framed by the Bar Council of
Maharashtra and Goa is that a person in full time salaried employment of the
Government, corporation or body ceased to have a right to practise. The
prohibition in Rule 49 is what remains.
38. The amendment made to the Maharashtra Judicial Service Rules
in 2010 was necessary to bring the rules for recruitment of District Judges in
conformity with the provisions of Article 233 of the Constitution. Under Article
233(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. As the Supreme Court held in
31 A full extract of Rule 7 is contained in the judgment in Oma Shanker Sharma v.
Delhi Administration, 1988(14) Delhi Reported Judgments 293.
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Sushma Suri's case to answer the description of an advocate, a person must
be on the rolls of the Bar Council and must be entitled to practise under the
Act. The effect of the deletion of the second and third paragraphs of Rule 49,
is that an Advocate shall, on taking up full time salaried employment,
"thereupon cease to practise as an advocate so long as he continues in such
employment". An Assistant Public Prosecutor in full time salaried employment
falls within the prohibition of Rule 49, being part of the service of the State.
Hence, the amendment of the State Judicial Service Rules is consistent with
and necessary to bring the rules in conformity with Article 233(2). There is no
merit in the allegation that there is any discrimination qua District Government
Pleaders. During the course of hearing the Court has been informed that
District Government Pleaders in the State of Maharashtra are not in the full
time salaried employment of the State. Hence, there is no discrimination qua
the full time salaried Assistant Public Prosecutors.
39. On behalf of the Petitioners, it was sought to be urged that there
is a distinction in law between a contract of service and a contract for service
and an Advocate even if he is engaged on a salary and on a full time basis,
does not perform a contract of service, but a contract for service. In our view,
this distinction between a contract of service and a contract for service which
has been made in other contexts, would have no application to the
interpretation of Rule 49 of the Bar Council of India Rules. The judgment of
the Supreme Court in Chintaman Rao vs. State of Madhya Pradesh, 32
dealt with the provisions of Section 2(1) of the Factories Act which defines a
32 AIR 1958 SC 388(1)
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"worker" as a person employed, directly or through any agency, whether for
wages or not, in any manufacturing process, or in any other kind of work
incidental to, or connected with, or the subject of the manufacturing process.
The issue was whether Sattedars who had an agreement with the
management that they should receive tobacco and supply it rolled in bidis for
consideration would be workers. The Supreme Court noted that such persons
were independent contractors, who performed their part of the contract by
making bidis and delivering them at the factory and were not under the
control of the factory management. The Supreme Court held that a concept
of employment involves three ingredients: (i) an employer; (ii) an employee;
and (iii) a contract of an employment. In this context, the Supreme Court
noted that there was a well understood distinction between contractors and
workmen and between a contract of service and a contract for service.
Similarly, in Indian Medical Association vs. V.P.Shantha,33 the Supreme
Court held there that in enacting Section 2(1)(o) of the Consumer Protection
Act, 1986, Parliament was cognizant of the distinction between a contract of
service and contract for service and the exclusionary part of the provision
covering a contract of personal service must, therefore, be construed as
excluding service rendered by the employee to his employer under a contract
of personal service from the ambit of the expression "service". These
judgments will not advance the case of the Petitioners. The Petitioners are
full time and salaried Assistant Public Prosecutors who have been recruited
on civil posts falling in the Group-A establishment of the State. They were
initially appointed on probation. Upon confirmation in service, they receive a
33 (1995) 6 SCC 651
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salary in accordance with the prescribed pay scales. Their conditions of
service are defined by statutory rules. They are subject to the disciplinary
jurisdiction of the State Government. Their fitness for promotion is
determined by a Departmental Promotion Committee. They are subject to
the administrative control of the State Government. The underlying rationale
for the deletion of the second and third paragraphs of Rule 49 is that a person
who is engaged in full time salaried employment is by the terms of his
engagement primarily responsible to his master. The holder of a full time
salaried post on the establishment of the State Government is obedient to the
dictates of his administrative superiors. This may involve the individual in a
conflict of interest. The duty of a member of a Bar is a duty as an officer of
the Court. However, in the case of a full time salaried employee that duty
may in actual practice become subordinate to the need to fulfill the mandate
of the employer with whom the employee has a relationship of master and
servant. The distinction between the role of an advocate who is engaged for
a particular brief or for that matter, on a retainer to conduct cases of a client,
including Government and a person who is in a full time salaried employment
is not just a question of degree. An Advocate who as a professional accepts
a brief, is undoubtedly engaged by a client to pursue a case which has been
instituted for a cause or to defend the case as a professional. An Advocate
has a mandate which carries with it a professional obligation to protect the
interest of the client. But this mandate which arises by the engagement of a
professional is subject to two important qualifications. The first qualification is
that by knowledge, training and experience, a professional acquires skill and
insight in the law and the manner in which he presents the case of his client is
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fundamentally governed by the discharge of his professional knowledge,
wisdom and discretion. The second qualification is that though an Advocate
accepts a brief on behalf of a client, his foremost obligation in the exercise of
his functions is as an officer of the Court. As an officer of the Court, the
obligation of a member of the Bar is to ensure that the cause of justice is not
derailed by the use of methods or strategies which deflect the Court from the
pursuit of truth. What full time and salaried employment does to the
professional is to bring him into a fold of subordination with his employer.
Employment makes the individual employee subject to the discipline of the
service.
The discipline of service assumes a paramount nature in the
discharge of his obligation. Consequently, while an Advocate, who is an
employee continues to retain his professional skill and knowledge, these
qualities are expected by the employer to be used to a single minded pursuit
of promoting the interest of the employer. That indeed is where a conflict of
interest and duty is liable to arise. The underlying basis of the prohibition
contained in Rule 49 as it now stands, is to ensure that a member of the Bar
continues to retain his or her sense of professional independence. It is that
sense of professional independence which constitutes the basis of an
objective, fearless and independent profession that history has shown the
legal profession to be. A member of the legal profession who is entitled to
practise in a Court of law, has a duty as an officer of the Court. As an officer
of the Court, the obligation of a lawyer is to discharge his or her functions and
to apply the training, knowledge and experience at the Bar in a manner that
would subserve the cause of justice. Though engaged by a client to pursue,
initiate or defend a cause, the obligation which a member of the Bar assumes
VBC 47/59 wp1916.11-FB
on accepting a brief is to pursue the interest of the client with a sense of
objectivity, fairness and rectitude. In this sense, a lawyer is truly an
autonomous professional; a person engaged by a client to represent a cause
but to whom the means of pursuing the cause of justice are as significant as
the ends or objectives of securing justice. The maxim that the ends do not
justify the means is a reminder - perhaps a stark one in our times - to the
members of the profession of their overarching commitment to the cause of
justice.
Vires of subordinate legislation:
40. The vires of subordinate legislation can undoubtedly be
questioned on the ground of unreasonableness, 34 since what is unreasonable
would violate Article 14 of the Constitution. But , a distinction has to be made
in regard to the power of judicial review when the constitutional validity of
legislation or of subordinate legislation is questioned as distinct from when an
action of the executive is challenged on the ground of unreasonableness.
The validity of executive action, when it is challenged as unreasonable can be
assessed with reference to inter alia the following considerations:
"(i) whether the discretion conferred upon the statutory authority
had been properly exercised;
(ii) whether the exercise of such discretion is in consonance with
the provisions of the Act;
(iii) whether while taking such action, the executive Government
had taken into consideration the purport and object of the Act;
(iv) whether the same subserved other relevant factors which
would affect the public at large;
34 Bombay Dyeing & Mfg.Co. Ltd. vs. Bombay Environment Action Group, (2006)
3 SCC 434.
VBC 48/59 wp1916.11-FB
(v) ......
(vi) whether in arriving at such a decision, both substantive due
process and procedural due process had been complied with." 35
As the Supreme Court held in Bombay Dyeing "Judicial review of
administrative action and judicial review of legislation stand on a different
footing. What is permissible for the court in case of judicial review of
administrative action may not be permissible while exercising the power of
judicial review of legislation."36 The test which has been laid down in regard to
arbitrariness, where
unreasonableness, is
legislation is challenged on
the test of manifest arbitrariness. 37
the ground
An arbitrary
of
exercise of legislative power has to be determined with reference to the
purpose and object of the statute. The same principle must apply to
delegated legislation and unless the exercise which has been undertaken by
the rule making authority results in subordinate legislation which is manifestly
arbitrary, the Court would not exercise the power of judicial review.
41. In Sharma Transport Represented by D.P.Sharma vs.
Government of A.P.,38 the Supreme Court held as follows:
"The tests of arbitrary action applicable to executive action do not
necessarily apply to delegated legislation. In order to strike down
a delegated legislation as arbitrary it has to be established that
there is manifest arbitrariness. In order to be described as
arbitrary, it must be shown that it was not reasonable and
manifestly arbitrary. The expression "arbitrarily" means: in an
unreasonable manner, as fixed or done capriciously or at
pleasure, without adequate determining principle, not founded in
35 Bombay Dyeing & Mfg. Co.Ltd. (supra) para 197 at page 510.
36 At para 198 page 510
37 At para 205 page 511
38 (2002) 2 SCC 188
VBC 49/59 wp1916.11-FB
the nature of things, non-rational, not done or acting according to
reason or judgment, depending on the will alone."
The same principle was enunciated in the judgment of the Supreme Court in
Khoday Distilleries Ltd. v. State of Karnataka:39
"So long as the policy as formulated in the amended Rules is not
manifestly arbitrary or wholly unreasonable, it cannot be
considered as violative of Article 14."
The Constitutional challenge :
(i) The proviso in the Maharashtra Judicial Service Rules:
42. The judgment of the Constitution Bench of the Supreme Court in
Chandra Mohan vs. State of U.P. 40 takes note of the fact that when India
attained independence, 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. After independence, recruitment to the Indian Civil
Service was discontinued and the Union Government decided that members
of the newly created Indian Administrative Service would not be given judicial
posts. Thereafter, District Judges have been recruited only from either
judicial service or from the Bar. As the Supreme Court noted, "there was no
case of a member of the executive having been promoted as a District
Judge".41 The Supreme Court noted:
"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
39 AIR 1996 SC 911
40 AIR 1966 SC 1987
41 At para 20 page 1995
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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 departments? Therefore, the history of the
services also supports our construction that the expression "the
service" in Art. 233(2) can only mean the judicial service." 42
The judgment of the Supreme Court in Chandra Mohan's case also
emphasizes the importance which is ascribed by the Constitution to the
independence of the District judiciary:
"But the makers of the Constitution also realised that "it is the
Subordinate Judiciary in India who are brought most closely into
contact with the people, and it is no less important, perhaps
indeed even more important, that their independence should be
placed beyond question in the case of the superior Judges".
Presumably to secure the independence of the judiciary from the
executive, the Constitution introduced a group of articles in Ch.VI
of Part VI under the heading "Sub-ordinate Courts". But at the
time the Constitution was made, in most of the States the
magistracy was under the direct control of the executive. Indeed it
is common knowledge that in pre-independence India there was a
strong agitation that the judiciary should be separated from the
executive and that the agitation was based upon the assumption
that unless they were separated, the independence of the
judiciary at the lower levels would be a mockery. So article 50 of
the Directive Principles of Policy states that the State shall take
steps to separate the judiciary from the executive in the public
services of the States. Simply stated, it means that there shall be
a separate judicial service free from the executive control." 43
Consequently, when Article 233(2) contemplates two sources of recruitment
to the District judiciary, the interpretation that has been placed on both those
sources of recruitment must be in a purposive context to foster the protection
of the independence of judiciary. Firstly, the words, "already in the service of
the Union or of the State" has been interpreted to mean judicial service and
not any service of the Union or the State. (Chandra Mohan (supra))
42 At para 20 page 1995
43 At para 14 page 1993
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Secondly, the words, "if he has been for not less than seven years, an
Advocate or a pleader" have been construed in the context of the practice of
law based on an entitlement to practise under the Advocates Act. The
Advocates Act governs the enrollment of members of the Bar and lays down
entitlement to practise at the Bar. Rule 49 circumscribes the entitlement by
stipulating that an Advocate will not be entitled to accept the full time salaried
employment with the State or with a person, Government, firm, corporation or
concern, so long as he continues to practise and upon taking up any such
employment, he shall cease to practise as an Advocate. This prohibition has
to be understood as a regulatory measure designed to ensure that a
professional in the law is not subservient to the dictates of an employer and it
is only the cause of justice that must govern his professional decisions.
43. Understood in the context of the provisions of Article 233(2), the
proviso of the Maharashtra Judicial Service Rules has an added dimension
which is the need to preserve the independence and impartiality of the
judiciary. The district judiciary is a vital element in the dispensation of justice.
It is the judiciary as an institution at the level of the Talukas and the Districts
which comes into interface with the lives of citizens. The credibility of the
institution of justice in society is, therefore, significantly determined by the
perception of the role of the judge in the District judiciary. Article 233
constitutes a carefully designed provision which the founding fathers of the
Indian Constitution made in order to protect the independence of the District
judiciary. The Judges of the High Court are also drawn, apart from the
members of the Bar, from amongst District Judges. The credibility and
VBC 52/59 wp1916.11-FB
independence of District Judges, therefore, also has significant ramifications
for the judicial institution as a whole. The post of a District Judge is entrusted
with high responsibilities both of a judicial and administrative character. The
tone, tenor and character of justice in the Districts is shaped by the District
Judge who is expected to lead his complement of judges in the District. The
integrity, competence and efficiency of the District Judge sets an example to
all the other judges in the District. Hence, the proviso to the judicial service
rules is intended to ensure the independence and integrity of District Judges
in the State.
(ii) Deletion of the second and third paras of Rule 49:
44. In our judgment in a companion Petition which has been filed on
behalf of the Law Officers of the Municipal Corporation of Greater Mumbai, we
have upheld the validity of the amendment to Rule 49. 44 Briefly those reasons
are summarised hereafter. When the Bar Council of India initially framed the
rules, it was, in our view, legitimately open to it to stipulate a prohibition on the
acceptance of full time salaried employment without any exception
whatsoever. Since such a course of action was open to the Bar Council, it
would necessarily be open to the Bar Council to delete an exception which
has originally been carved out. The exception was in the nature of a
concession granted. No lawyer could assert a vested right to the grant of
such an exemption. But for the exception, the prohibition in the substantive
part of Rule 49 would necessarily govern. The Bar Council of India as the rule
making authority is empowered under Section 49(1)(ah) to define the
44 Brihanmumbai Mahanagarpalika & Anr. vs. The Secretary, Bar Council of
Maharashtra & Goa & Anr. Writ Petition (L) 1827 of 2012.
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conditions subject to which an Advocate shall have a right to practise and the
circumstances under which a person shall be deemed to practise as an
Advocate in a Court. In exercise of that power of framing subordinate
legislation, the Bar Council is entitled in law to provide a rule of the nature
embodied in Rule 49. The exception to the rule also fell within the regulatory
power of the Bar Council under Section 49(1)(ah). The deletion of that
exception can, therefore, not impinge on the constitutional legitimacy of the
decision. Subordinate legislation involves an activity of a legislative nature.
The motives of the legislature or of the delegate of the legislature in framing
subordinate legislation do not bear on the constitutionality of the legislative
action.
45. The resolution of the Bar Council of India in support of the deletion
of the second and third paragraphs was passed on 22 June 2001 after
considering the views received from the State Bar Councils in respect of the
deletion of the provisions. The subsequent resolution passed at a meeting
held on 22/25 December 2001 purports to clarify that "as the Supreme Court
has struck down the appearance of the Law Officers in Court even on behalf
of their employers the judgment will operate in the case of all Law Officers".
This clarification does not affect either the power of the Bar Council or the
legality of the deletion of the second and third paras by the earlier resolution.
The judgment in Satish Kumar Sharma refers to the underlying purpose of
the stipulation in Rule 49 that an Advocate shall not be a full time salaried
employee, in the following words:
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"As is clear from the rules contained in Chapter II of the Rules an
advocate has a duty to the court, duty to the client, duty to the
opponent and duty to colleagues unlike a full time salaried
employee whose duties are specific and confined to his
employment. Rule 49 has a specific purpose to serve when it
states that an advocate shall not be a full time salaried employee
of any person, Government, firm corporation or concern. As
already noticed above, Section 24(1) specifically states that a
person in addition to satisfying other conditions has also to satisfy
the provisions of the Act and the Rules. In other words, the Rules
made by the Bar Council of India are to be satisfied. Mere non-
framing of rules by a State Bar Council under Section 28(2)(d)
read with Section 24(1)(e) of the Act cannot dispense with
obedience to Rule 49.
...
...the provisions of the Act and the Rules made thereunder inter
alia aimed to achieve the same ought to be given effect to in their
true letter and spirit to maintain clean and efficient Bar in the
country to serve the cause of justice which again is a noble one." 45
The Bar Council of India cannot be regarded as having acted in a manner
ultra vires when the provisions of the first paragraph of Rule 49 were made in
the first instance. The second and third paragraphs carved out an exception
in respect of the appearance of full time salaried Law Officers, as defined.
The Bar Council which had jurisdiction under the statute to enact Rule 49 both
with the substantive prohibition and the limited exception was equally acting
within its jurisdiction in deleting the exception. There is no arbitrariness
involved in the exercise. On this aspect of the matter, it would also be
necessary to take due note of the fundamental position in law that subordinate
legislation involves the exercise of a legislative power. The fact that a power
is delegated to the executive(or, as in this case, to the Bar Council) does not
convert the power into an executive or administrative power. Just as the
Court cannot issue a writ of Mandamus to the legislature to enact a law, the
45 At paras 9 and 10 pages 373 and 374
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Court cannot similarly direct a subordinate legislative body to enact a
particular rule.46 Moreover, as the Supreme Court held in a recent judgment
in State of Tamil Nadu vs. K.Shyam Sunder,47 if an amending Act of the
legislature is struck down for want of legislative competence or on the ground
that it is violative of the fundamental rights in Part-III of the Constitution, it
would be unenforceable in view of Article 13(2) and the old Act would revive.
But this proposition of law is not applicable to subordinate legislation. 48
Hence, even if the Court were arguably to strike down the amendment made
to Rule 49, that would not result in a revival of Rule 49 in its original form.
Having noted this legal position, we however, clarify that we have concluded
that the deletion of the second and third paras of Rule 49 was valid.
46. There is no merit in the submission that the resolution of the Bar
Council of India came into force only upon receiving the sanction of the Chief
Justice of India in 2008. The submission is devoid of merit for the simple
reason that Rule 49 made by the Bar Council of India is referable to the
exercise of the powers conferred by Section 28(1)(ah) under which the Bar
Council is empowered to prescribe conditions subject to which an Advocate
shall have the right to practise and the circumstances under which a person
shall be deemed to practise as an Advocate in Court. The proviso to Section
28(1) requires the approval of the Chief Justice of India to a rule made with
reference to clause (c ) (dealing with the standards of professional conduct
and etiquette to be observed by Advocates) and under clause (gg) (dealing
46 Narindra Chand Hem Raj vs. Lt.Governor, Administrator, Union Territory, H.P.,
AIR 1971 SC 2399 and State of J. and K. vs. A.R.Zakki, AIR 1992 SC 1546 at
para 10
47 (2011) 8 SCC 737
48 At para 59 page 769
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with the form of dresses or robes to be worn by Advocates appearing before
any Court or Tribunal).
The reference to the Full Bench :
47. The reference before the Full Bench arose in view of the fact that
the Division Bench of this Court while considering the Petition, found itself
unable to agree with the view expressed by an earlier Division Bench in Ayub
Pathan vs. High Court of Judicature at Bombay.49 The Petitioners before
the Court in that case were in the service of the Union of India or, as the case
may be, the State of Maharashtra as Public Prosecutors on a salaried basis.
They challenged an advertisement of this Court dated 18 February 2011
inviting applications for the post of a District Judge to the extent to which full
time salaried Public Prosecutors, Assistant/Additional Public Prosecutors and
Law Officers to the Central or State Government or of any public corporation
or body constituted by statute were not eligible for appointment as District
Judges. It was urged that (i) This amounted to a discrimination because all
Public Prosecutors whether salaried or not constitute one class; and (ii) A
condition had been inserted in the advertisement without a corresponding
provision in the Judicial Service Rules. There was obviously no merit in the
second contention that there was no prohibition in the Judicial Service Rules
because as noted in the earlier part of this judgment, the rules were
specifically amended on 31 December 2010 to incorporate such a prohibition.
On the first submission, the Division Bench relied upon the judgment of the
49 Writ Petition 1848 of 2011 decided on 3 March 2011.
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Supreme Court in Satish Kumar Sharma (supra) in support of the proposition
that salaried Public Prosecutors constitute a class different from those who
are not salaried employees. In that regard, reliance was placed on paragraph
23 of the decision in Satish Kumar Sharma. Now, it is undoubtedly true that
the discrimination that was urged before the Supreme Court in Satish Kumar
Sharma was by a full time salaried Law Officer of the State Electricity Board
who claimed that he has been discriminated against qua prosecutors and
government pleaders. Dealing with that submission, the Supreme Court held
that the duty, nature of work and service conditions of the Appellant there
were substantially different from those of a prosecutor or government
pleaders, particularly in relation to acting in Court and that hence, the
Appellant stood on a different footing. The observations in paragraph 23 of
the decision in Satish Kumar Sharma do not, therefore, deal with the nature
of the discrimination that was urged before the Court in Ayub Pathan's case.
To that extent, the Division Bench in Ayub Pathan's case has not, with great
respect, correctly construed the context in which the observations in
paragraph 23 of the decision in Satish Kumar Sharma's case were made.
Having said this, we must still come to the conclusion that the provisions by
which full time salaried Public Prosecutors have been rendered ineligible for
appointment to the post of District Judges cannot be regarded as
discriminatory. We have dealt with this aspect in a considerable amount of
detail in the earlier part of this judgment. To recapitulate, we have
emphasized two facets. Firstly, as a consequence of the deletion of the
second and third paragraphs of Rule 49 of the Rules framed by the Bar
Council of India, there is now an absolute prohibition on an Advocate
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accepting full time salaried employment with a person, Government, firm,
corporation or concern and upon accepting such employment, the Advocate
has to notify the Bar Council and shall thereupon cease to practise as an
Advocate. Secondly, Article 233(2) which contemplates that a person will be
eligible to be appointed as a District Judge "if he has been for not less than
seven years an Advocate or a pleader" must be construed to mean a person
who is on the rolls of the Bar Council and entitled to practise under the
provisions of the Advocates Act. Where under the rules framed under the
Advocates Act, there is a prohibition on an Advocate accepting full time
salaried employment - a prohibition which has been upheld - an Assistant
Public Prosecutor appointed under Section 25 of the Code of Criminal
Procedure, 1973 and in the full time salaried employment of the State would
not meet the description of a person eligible to be appointed as a District
Judge within the meaning of Article 233(2). In the circumstances, while we
accept the submission that the reason which was indicated by the Division
Bench in Ayub Pathan was not correct, Assistant Public Prosecutors in the
position of the Petitioners appointed on a civil post on the establishment of the
State and in full time salaried employment would not be eligible for being
appointed as District Judge under Article 233(2) of the Constitution. We
answer the question of law referred to the Full Bench in the aforesaid terms.
48. During the course of the hearing, as we have noted in the initial
part of this judgment, all the facets of the Petition under Article 226 of the
Constitution have been urged for determination before the Full Bench and
submissions have been made on the basis that the Petition is taken up for
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hearing and final disposal by consent. Having heard all Learned Counsel and
for the reasons which we have indicated, we do not find any merit in the
Petition. The Petition shall accordingly stand dismissed.
49. In view of the dismissal of the Petition, the Civil Application does
not survive and is accordingly disposed of.
( Dr.D.Y.Chandrachud, J.)
( V.M. Kanade, J. )
( A.A. Sayed, J. )
