Kerala High Court
Biji vs Registrar, High Court Of Kerala on 9 August, 2001
Author: P.K. Balasubramanyan
Bench: P.K. Balasubramanyan
JUDGMENT
P.K. Balasubramanyan, Ag. C.J.
1. The petitioner applied pursuant to the notification issued by the High Court of Kerala, inviting applications from qualified candidates for appointment to the post of Munsiff-Magistrate in the kerala Judicial Service. The qualifications prescribed by Clause 4 of the notification in so far as it is relevant, it as follows:-
"4. Qualifications:
(i) Direct recruitment. - No person shall be eligible for appointment as Munsiff-Magistrate by direct recruitment unless he is a graduate in Law or a Barrister-at-Law and a practising Advocate having a standing at the Bar for a period of not less than five years.
But a practising Advocate who is a member of Scheduled Caste or Scheduled Tribe shall be eligible for appointment as Munsiff-Magistrate if he is having practice at the bar for a minimum period of not less than three years.
(ii) Recruitment by transfer.- No person shall be eligible for appointment as Munsiff-Magistrate by transfer unless he has practised as an Advocate for a period of not less than three years prior to his appointment to any one or more of the feeder categories mentioned below and has functioned at least for a period of two years in any one or more of the feeder categories, excluding the period of service, if any, not counting for probation.
A person who is otherwise qualified for appointment by transfer but is not holding any of the posts enumerated below at the time of his application for appointment by transfer, shall be eligible for appointment if he has held any one of more of such posts at any time, for the prescribed number of years and is holding a post in a higher scale of pay in any of the offices from which appointment is to be made.
Note.- Save as otherwise provided, eligibility shall be determined with reference to the last date fixed for the receipt of applications.
Feeder Categories of officers for recruitment by transfer:
(i) Assistant Public Prosecutors Grade I & II;
xxx xxx xxx xxx"
The petitioner in O.P. 23132 of 2001 had not completed five years of practice when he took up temporary appointment as Assistant Public Prosecutor Grade II in the Judicial First Class Magistrate Court I, Chengannur. That was on 13.7.2000. Therefore, on the relevant date, he had also not completed the period of two years as contemplated by sub-clause (ii) of Clause 4 of the notification, in that he had not functioned at least for a period of two years in the feeder category. The petitioner in O.P. 23291 of 2001 also had not completed five years of practice at the Bar before he took temporary employment as Assistant Public Prosecutor Grade II on 6.11.2000. On the relevant date, both the petitioners were working as Assistant Public Prosecutors Grade II.
2. The applications of the petitioners pursuant to the notification were rejected by the High Court on the ground that the petitioner were not practising as Advocates as stipulated in the notification and on the further ground that they did not belong to any of the prescribed feeder categories. These rejections are challenged in these Original Petitions.
3. The facts are not in dispute. The petitioners do not have practice for a period of five years as Advocates. Before the completion of that period, they have also taken up the posts of Assistant Public Prosecutor Grade II, though temporarily. They had not completed two years in those posts. What the petitioners urge is that merely because they have taken up the position of Assistant Public Prosecutor Grade II, they did not cease to be practising advocates having a standing at the bar and the period during which they are functioning as Assistant Public Prosecutors Grade II should also be added on to the earlier period in which they were practising as advocates and if the periods are added up, they would satisfy the five year period of practice envisaged in the notification prescribing qualifications. The petitioners rely on the decision in Sushama Suri v. Govt. of National Capital Territory of Delhi ((1999) 1 SCC 330) in support of their contention. They refer to paragraph 10 of that judgment in relation to the interpretation of R. 49 of the Bar Council of India Rules and point out that since they are actually practising before Courts, they must be understood as practising advocates and the period during which they have taken up the position of the Assistant Public Prosecutor Grade II should also be reckoned as "practice". Paragraph 10 of the said decision reads as follows:-
"10. Under R. 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 facts to the Bar Council concerned and shall cease to practise as long 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 require 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 R. 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 R. 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 even the terms of engagement will not matter at all. What is of essence is as to 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."
As against this, it is brought to our notice by learned counsel who appeared for the respondent that under R. 49 of the Bar Council of India Rules, the petitioner could not be treated as law officers, in whose favour alone an exemption in carved out and since the petitioners are Assistant Public Prosecutors Grade II, they cannot be taken to be practising advocates within the meaning of clause 4 of the notification. Counsel referred to the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 to point out that a Assistant Public Prosecutor Grade II or even a Public Prosecutor is not included in the definition of "Government Law Officer" and hence the second part of R. 49 of the Bar Council of India Rules has no application. It is also pointed out that the entitlement of the Assistant Public Prosecutor Grade II to appear on behalf of the Government or prosecute the case on behalf of the Government in Criminal Court stems from S. 25 of the Code of Criminal Procedure and in that situation, it has to be held that once the petitioners have taken up employment as Assistant Public Prosecutors Grade II, they cannot claim to be practising advocates and in any event, seek the tacking on of their period of service as Assistant Public Prosecutors, to the practice at the bar they earlier had. On the interpretation to be placed on R. 49 of the Bar Council of India Rules, counsel relies on the decision in Satish Kumar Sharma v. Bar Council of Himachal Pradesh (AIR 2001 SC 509). In that decision, the Supreme Court has indicated the scope of R. 49 in paragraph 18 of the judgment. the said paragraph reads:-
"18. On a proper and careful analysis, having regard to the plain language and clear terms of R. 49 extracted above, it is clear that:-
(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 concerned Bar Council and he shall cease to practice so long as he continues in such employment:
(ii) para 2 of the Rules 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 contained in R. 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 employer can avail the benefit of the exception contained in para 2 of R. 49".
4. The petitioners are appointed as Assistant Public Prosecutors Grade II under the Special Rules for the posts of Deputy Director of Prosecution and Senior Assistant Public Prosecutor, Assistant Public Prosecutor Grade I and Assistant Public Prosecutor Grade II. The Rules indicate that it is an appointment to a post. The qualification for the post concerned is that the person must be a graduate in law and must be a member of the Bar and must have not less than three years of active practice in Criminal Courts. R. 9 provides for training and R. 10 provides for test qualification. The temporary appointments, like the present ones, is under R. 12. The Prosecutor so appointed is entitled only to prosecute on behalf of the Government in the Court concerned. It is not brought to our notice that he is entitled to practice in any other Court. It is also not brought to our notice that he is entitled t_ appear for any other private party in any other litigation in which the Government is not involved. In other words, it appears that he can only appear on behalf of the Government to prosecute in that particular Court and that is on the strength of S. 25 of the Code of Criminal Procedure. In this situation, it appears to us that the second part of R. 49 of the Bar Council of India Rules exempting Law Officers from disqualification does not apply to Assistant Public Prosecutors Grade II appointed under the Special Rules in Kerala, though it may be a temporary appointment in terms of R. 12 thereof. As can be seen from the decision in Satish Kumar Sharma v. Bar Council of Himachal Pradesh (AIR 2001 SC 509) quoted above, for coming within the second limb of R. 49 of the Bar Council of India Rules, the petitioners should have been designated as Law Officers. Admittedly, they are not designated as Law Officers and there has been no contention before us that they qualify as Law Officers under the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978. The earlier decisions of the Madras High Court in Sigamani v. Vidyasagaran ((1969) 1 MLJ 99) and the decision short noted in Akhilesh Kumar Misra v. High Court of Judicature at Allahabad (1995 (1) KLT SN 42 - Case No. 52) also support the view we have taken as above. The decision in Sushma Suri v. Govt. of National Capital Territory of Delhi ((1999) 1 SCC 330) understood in the light of the subsequent decision by a Bench of equal number of Judges in Satish Kumar Sharma v. Bar Council of Himachal Pradesh (AIR 2001 SC 509) would not enable the petitioners in these cases to successfully contended that they must be held to be practising Advocates in spite of the fact that they have taken up appointments as Assistant Public Prosecutors Grade II before completing five years of practice at the Bar. Since they have not completed the requisite number of years for being considered for appointment by way of recruitment by transfer, again they are found to be not qualified to come under that category. In this situation, we have to hold that the respondent was justified in rejecting the applications of the petitioners. We do not find it possible to interfere with that decision or to grant relief to the petitioners in these Original Petitions.
5. The Original Petitions are, therefore, dismissed._