Bombay High Court
Sunanda Bhimrao Chaware & Ors vs The High Court Of Judicature At Bombay on 17 October, 2012
Author: D.Y.Chandrachud
Bench: 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) ::: Downloaded on - 09/06/2013 19:17:18 ::: VBC 2/59 wp1916.11-FB
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 ::: Downloaded on - 09/06/2013 19:17:18 ::: VBC 4/59 wp1916.11-FB 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 ::: Downloaded on - 09/06/2013 19:17:18 ::: VBC 5/59 wp1916.11-FB 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.
8. Section 24 of the Advocates Act, 1961 provides for persons who
5 AIR 1966 SC 1987 6 (1985) 1 SCC 225 ::: Downloaded on - 09/06/2013 19:17:18 ::: VBC 6/59 wp1916.11-FB 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) ::: Downloaded on - 09/06/2013 19:17:18 ::: VBC 7/59 wp1916.11-FB 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
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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 ::: Downloaded on - 09/06/2013 19:17:18 ::: VBC 10/59 wp1916.11-FB 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 ::: Downloaded on - 09/06/2013 19:17:18 ::: VBC 11/59 wp1916.11-FB 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:
9 CWP No.1961 of 1987 ::: Downloaded on - 09/06/2013 19:17:18 :::VBC 12/59 wp1916.11-FB "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 ::: Downloaded on - 09/06/2013 19:17:18 ::: VBC 13/59 wp1916.11-FB 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 ::: Downloaded on - 09/06/2013 19:17:18 ::: VBC 14/59 wp1916.11-FB 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 ::: Downloaded on - 09/06/2013 19:17:18 ::: VBC 15/59 wp1916.11-FB 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 ::: Downloaded on - 09/06/2013 19:17:18 ::: VBC 16/59 wp1916.11-FB 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 ::: Downloaded on - 09/06/2013 19:17:18 ::: VBC 17/59 wp1916.11-FB
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 ::: Downloaded on - 09/06/2013 19:17:18 ::: VBC 19/59 wp1916.11-FB 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 ::: Downloaded on - 09/06/2013 19:17:18 ::: 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 ::: Downloaded on - 09/06/2013 19:17:18 ::: 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.
20Rule 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;::: Downloaded on - 09/06/2013 19:17:19 :::
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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.
::: Downloaded on - 09/06/2013 19:17:19 :::VBC 25/59 wp1916.11-FB 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.
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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 ::: Downloaded on - 09/06/2013 19:17:19 ::: 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 ::: Downloaded on - 09/06/2013 19:17:19 ::: 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 ::: Downloaded on - 09/06/2013 19:17:19 ::: 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, ::: Downloaded on - 09/06/2013 19:17:19 ::: 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 ::: Downloaded on - 09/06/2013 19:17:19 ::: 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 ::: Downloaded on - 09/06/2013 19:17:19 ::: 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 ::: Downloaded on - 09/06/2013 19:17:19 ::: 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 ::: Downloaded on - 09/06/2013 19:17:19 ::: 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 ::: Downloaded on - 09/06/2013 19:17:19 ::: 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 ::: Downloaded on - 09/06/2013 19:17:19 ::: 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 ::: Downloaded on - 09/06/2013 19:17:19 ::: VBC 38/59 wp1916.11-FB
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 ::: Downloaded on - 09/06/2013 19:17:19 ::: 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 ::: Downloaded on - 09/06/2013 19:17:19 ::: VBC 40/59 wp1916.11-FB 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 ::: Downloaded on - 09/06/2013 19:17:19 ::: VBC 41/59 wp1916.11-FB 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 ::: Downloaded on - 09/06/2013 19:17:19 ::: VBC 42/59 wp1916.11-FB 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.
::: Downloaded on - 09/06/2013 19:17:19 :::VBC 43/59 wp1916.11-FB 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) ::: Downloaded on - 09/06/2013 19:17:19 ::: VBC 44/59 wp1916.11-FB "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 ::: Downloaded on - 09/06/2013 19:17:19 ::: VBC 45/59 wp1916.11-FB 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 ::: Downloaded on - 09/06/2013 19:17:19 ::: VBC 46/59 wp1916.11-FB 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 ::: Downloaded on - 09/06/2013 19:17:19 ::: 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.
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(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
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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 ::: Downloaded on - 09/06/2013 19:17:19 ::: VBC 50/59 wp1916.11-FB 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 ::: Downloaded on - 09/06/2013 19:17:19 ::: VBC 51/59 wp1916.11-FB 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 ::: Downloaded on - 09/06/2013 19:17:19 ::: 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.
::: Downloaded on - 09/06/2013 19:17:19 :::VBC 53/59 wp1916.11-FB 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:
::: Downloaded on - 09/06/2013 19:17:19 :::VBC 54/59 wp1916.11-FB "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 ::: Downloaded on - 09/06/2013 19:17:19 ::: VBC 55/59 wp1916.11-FB 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 ::: Downloaded on - 09/06/2013 19:17:19 ::: VBC 56/59 wp1916.11-FB 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.
::: Downloaded on - 09/06/2013 19:17:19 :::VBC 57/59 wp1916.11-FB 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 ::: Downloaded on - 09/06/2013 19:17:19 ::: VBC 58/59 wp1916.11-FB 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 ::: Downloaded on - 09/06/2013 19:17:19 ::: VBC 59/59 wp1916.11-FB 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. ) ::: Downloaded on - 09/06/2013 19:17:19 :::