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IInd Set of Petitions Writ petition No. 21584 of 2007 has been filed by Bhanu Pratap Pandey and 42 others who are working as APO/APP in various districts of the State of U.P., assailing the Circular/notice dated 26.04.2007, issued by Registrar General of this Court, respondent No. 3 communicating the various District Judges not to forward applications of APP/APOs since they are not eligible to appear in HJS Examinations 2007. They have also sought a writ of mandamus commanding the District Judges concerned to forward applications of the petitioners for direct recruitment and permit them to, appear in the aforesaid selection.

(g) Article 233 provides two sources of recruitment namely one by promotion of the persons who are already in judicial service and secondly by direct recruitment from members of the Bar. The petitioners who are appointed and working as APP/APOs are functioning and working like an Advocate representing State of U.P. in criminal cases before subordinate courts. In view of Section 24 and 25 Cr.P.C. as also the law laid down by Apex Court in Sushma Suri v. Government of N.C.T. Delhi . The petitioners working as APP/APOs cannot be held ineligible to appear in the aforesaid selection and, therefore, circular dated 26.4.2007 issued by the Registrar, Allahabad High Court communicating all the District Judges not to forward applications of the persons working as APP/APOs since they are holder of civil posts, is illegal and the petitioners are entitled to appear in the aforesaid selection.

52. Consequently Clause 2 of the instructions of the advertisement in so far as it provides the cut off date as 1.1.2008 is also declared illegal and accordingly quashed.

53. The petitioners who are working as APP/AROs have pressed their claim contending that the Apex Court in the case of Chandra Mohan v. State of U.P. and Ors. AIR 1966 SC 1987 held that the expression "service" in Article 233(2) of the Constitution means only the "judicial service", and therefore, only those who are in "judicial service" are not eligible to be appointed as District Judge under Article 233(2) but all other persons even if they are in service, they are eligible to be appointed and cannot be denied right to appear in the present selection. It is said that 1975 Rules in so far as they restrict the persons working as APP/APOs, are ultra vires of Article 233(2) of the Constitution of India. It is further contended that Rule 49 of the Bar Council of India rules permits an advocate to continue to be an advocate even if he is a full time salaried employee of the central Government or of State or any public corporation or any body constituted by statute provided he is a law officer and is entitled to be enrolled under the Rules of the State Bar Council made under Section 22(2)(d) read with Section 24(1)(e) of the Act and by terms of his appointment he is required to act and/or pleads in Courts on behalf of his employer. It is also contended that this issue is already answered by the Apex Court in Sushma Suri (Surpa) land therefore, the letter dated 26.4.2007 issued by the Registrar General is illegal.without jurisdiction and even otherwise is contrary to law. Those APP/APOs who were enrolled with Bar Council of Uttar Pradesh and thereafter have practiced at the Bar for seven years are entitled to be considered under Article 233(2) and cannot be denied right of consideration merely because they have in the meantime being appointed as APP/APO and have become Government servant as well since a Government servant is not debarred from consideration under Article 233(2) of the Constitution either under 1975 Rules or under the Constitution itself provided he also answer the description of advocate having not less than seven years of standing.

12. Candidates who are or may be doing honorary service may be enrolled as Advocates on furnishing an affidavit to that effect.

66. A perusal of the Rules applicable in the State of U.P. shows that before enrollment an applicant should not be in the full time or part time service or employment but the said condition is not applicable to a person appointed as law officer of the Central Government or of the State government or an articled clerk of an attorney or a part time professor, lecturer or teacher in law etc. Even a person doing honorary service can be enrolled as advocate. Rule 10 on the other hand provides that after a person is admitted as an advocate, he may accept any employment which in the opinion of Bar Council is not derogatory to the status of an advocate. Thus Rule 10 of UP. Bar Council specifically permits a person to engage in service who is already enrolled with the Bar Council provided it is not derogatory to the status of an advocate. It is not the case of the respondents that employment of the petitioner as APP/APO is derogatory to the status of an advocate. The Bar Council of India Rules nowhere provides that a person who is validly enrolled as an advocate under the rules of the concerned State Bar Council and is permitted to be engaged in an employment under the said rules, would be disqualified by virtue of the rules framed by the Bar Council of India. Such overriding power to the rules framed by the Bar Council of India has not been given so as to override the rules framed by the State Bar Council under Section 28 of the Act. Under the rules framed by the Bar Council of U.P. the petitioners once admitted as advocate, if have been employed as APP/APO, such employment is not permitted unless the Bar Council forms an opinion that such employment is derogatory to the status of an advocate which is not the case of any of the party before us. In the circumstances it cannot be said that merely because the petitioners were appointed as APP/APO they cease to be an advocate particularly v/hen they continue to plead cases before the Court representing the State Government. It would also be appropriate at this stage to consider the Iaw applicable in Susham Suri (Surpa) with reference to Section 24 and 25 of the Cr.P.C. as sought to be argued by Sri Sirohi.