Holding

Under Article 233(2), "advocate or pleader" includes public prosecutors and similar law officers, their service counts as practice, and "the service" means only the judicial service, so the appellants were eligible for appointment as District Judges.

Summary

Five candidates who were serving as Assistant District Attorneys, Public Prosecutors or Deputy Advocate General were selected for the post of Additional District and Sessions Judge in Haryana through direct recruitment. The Punjab and Haryana High Court quashed their appointments, holding that they did not satisfy the eligibility criteria under Article 233(2) of the Constitution because they were in government service and had not completed seven years of continuous practice as advocates. On appeal, the Supreme Court examined the meaning of "advocate or pleader" and "the service" in Article 233(2), and considered whether periods of service as public prosecutors or similar law officers count as legal practice. The Court held that "advocate or pleader" includes public prosecutors and that service as such is deemed practice, and that "the service" refers only to the judicial service, not to government law officers. It also clarified that the seven‑year requirement must be continuous up to the date of application. Consequently, the appellants satisfied the constitutional and rule‑based eligibility, and the High Court’s order was set aside.

Issues considered

The meaning of "advocate or pleader" under Article 233(2) of the Constitution.
Whether a full‑time government law officer (Public Prosecutor, Assistant District Attorney, Deputy Advocate General) is deemed to be "in the service of the Union or the State" for purposes of Article 233(2).
Whether the period of service as a law officer counts towards the seven‑year practice requirement.
The interpretation of the phrase "the service" in Article 233(2).
The effect of the amendment to Bar Council of India Rule 49 on the eligibility of law officers.

Legislation cited

Advocates Act, 1961s. s.24(1)(e), s. s.28(2)(d)
Bar Council of India Ruless. r.43, s. r.49
Code of Civil Procedure, 1908s. s.2(15), s. s.2(7)
Code of Criminal Procedure, 1973s. s.2(4), s. s.24, s. s.24(7), s. s.24(8), s. s.24(9), s. s.25
Constitution of Indias. Art. 233(2)
Haryana Superior Judicial Service Rules, 2007s. r.11(b), s. r.5(ii), s. r.6

Subjects

Article 233(2)advocate eligibilityjudicial servicepublic prosecutorBar Council of India Rule 49direct recruitmentdistrict judge appointmentlegal practitionergovernment law officer

Judgment

[2013] 1 S.C.R. 402

A DEEPAK AGGARWAL
v.
KESHAV KAUSHIK AND OTHERS
(Civil Appeal No. 561 of 2013)
JANUARY 21, 2013
B
[R.M. LODHA, ANIL R. DAVE AND
RANJAN GOGOi, JJ.]

CONSTITUTION OF IND/A, 1950:
c
Art. 233(2) - Appointment to the post of Additional District
Judge through direct recruitment from Bar - Eligibility - Held:
One of the essential requirements articulated by the
expression "if he has been for not less than seven years an
D advocate" in Art. 233(2) is that such person must with
requisite period be continuing as an advocate on the date of
application.

Art. 233(2) - Expression 'advocate or pleader' - Held:
Refers to legal practitioner and, thus, it means a person who
E has a right to act and/or plead in court on behalf of his client
- For the purposes of Art. 233(2) both a Public Prosecutor
and' an Assistant Public Prosecutor are covered by the
expression 'advocate'- Rendering of service as a Public
Prosecutor or as Assistant Public Prosecutor is deemed to
F be practice as an advocate - Code of Civil Procedure, 1908
- ss. 2 (7) and 2(15) ...:. 'Government pleader' - 'Pleader' -
Code of Criminal Procedure, 1973 - ss. 2(4) (as applicable
in State of Haryana) 24 and 25 - Public Prosecutor -
Assistant Public Prosecutor - Bar Council of India Rules -
G rr. 43 and 49.

Art. 233(2) - Appointment to the post of Additional District
Judge through direct recruitment from Bar- Assistant District
Attorney/Public Prosecutor/Deputy Advocate General -
H 402
DEEPAK AGGARWAL v. KESHAV KAUSHIK 403

Eligibility - Held: Since private appellants did not cease to A
be advocate while working as Assistint District Attorney/Public
Prosecutor/Deputy Advocate General, the period during which
they have been working as such has to be considered as the
period practicing law - Thus, all of them have been advocates
for not less than seven years and were enrolled as advocates B
and were continuing as advocates on the date of the
application - They fulfilled the eligibility under Art. 233 (2) of
the Constitution and r. 11 of the HSJS Rules on the date of
application - Haryana Superior Judicial Service Rules, 2007
- rr. 5(ii) and 11. c
Art. 233 (2) - Expression "the service" occurring in Art.
233(2) means 'judicial service" - Other members of the
service of Union or State are excluded because Art. 233
contemplates only two sources from which District Judges can
be appointed: (i) judicial service; and (ii) the advocate/pleader D
or in other words from Bar.

The five private appellants, while working as
Assistant District Attorney/Public Prosecutor/Deputy
Advocate General, were selected through direct E
recruitment to the post of Additional District and Sessions
Judge in the Haryana Superior Judicial Service (HSJS).
However, the High Court, in writ petition quashed their
selection holding that they did not have the requisite
criteria to qualify for the recruitment as contemplated in F
Art. 233 of the Constitution of India and that except
appellant 'RM', the other appellants did not have requisite
experience.

In the instant appeals filed by the five candidates and
the High Court on administrative side, the questions for G
consideration before the Court were: (i) What is meant by
Advocate' or 'pleader' under Art. 233(2)"? (ii) Whether a
District Attorney/Additional District Attorney/Public
Prosecutor/Assistant Public Prosecutor/ Assistant
Advocate General, who is full time employee of the H
404 SUPREME COURT REPORTS [2013) 1 S.C.R.

A Government and governed and regulated by the statutory
rules of the State and is selected by direct recruitment
through the Public Service Commission, is eligible for
appointment to the post of District Judge under Article
233(2) of the Constitution?" (iii) "What is the meaning of
B the expression "the service" under Article 233(2) of the
Constitution"?

Allowing the appeals, the Court

HELD: 1.1. Clause (2) of Art. 233 of the Constitution
C of India, 1950 lays down three essentials for appointment
of a person to the post of District Judge; (i) a person shall
not be in service of the Union or of the State; (ii) he has
been for r.ot less than seven years an advocate or a
pleader; and (iii) his name is recommended by the
D relevant High Court for appointment. Thus, as regards a
person not already in service what is required is that he
should be an advocate or pleader of seven years'
standing and that his name is recommended by the High
Court for appointment as District Judge. [para 42] [432-
E D·F]
1.2. The expression, 'the service' in Art. 233(2) of the
Constitution means the "judicial service". Other members
of the service of Union or State are, as it is, excluded
because Art. 233 contemplates only two sources from
F which the District Judges can be appointed. These
sources are: (i) judiCial service; and (ii) the advocate/
pleader or in other words from the Bar. District Judges
can, thus, be appointed from no source other than judicial
service or from amongst advocates. Article 233(2)
G excludes appointment of District Judges from the judicial
service and restricts eligibility of appointment as District
Judges from amongst the advocates or pleaders having
practice of not less than seven years and who have been
recommended by the High Court as such. [para 46] [439-
H A-CJ
DEEPAK AGGARWAL v. KESHAV KAUSHIK 405

Chandra Mohan v. State of UP. and Others AIR 1966 A
SC 1987; Satya Narain Singh v. High Court of Judicature at
Allahabad and Others 1985 (2) SCR 112 = 1985 (1) SCC 225
- relied on.

Rameshwar Dayal v. State of Punjab and Others 1961
8
SCR 874 = 1961 AIR 816 - referred to

2. Despite the differences in the role and position of
Public Prosecutor and Assistant Public Prosecutor, for
the purposes of Art. 233(2) there is not much difference
between the two and both of them are covered by the C
expression 'advocate'. It is so for more than one reason.
In the first place, a Public Prosecutor u/s 24 Cr.P.C. is
appointed by the State Government or the Central
Government for conduct of prosecution, appeal or other
proceedings on its behalf in the High Court or for a D
district; and Assistant Public Prosecutor is appointed
u/s 25 Cr.P.C. by the State Government or the Central
Government to conduct prosecution on its behalf in the
courts of Magistrates. So the main function of Public
Prosecutor as well as Assistant Public Prosecutor is to E
act and/or plead on behalf of the Government in a court;
both of them conduct cases on behalf of the government.
Secondly and remarkably, for the purposes of counting
experience as an advocate as prescribed in sub-ss. 24(7)
and 24(8) CrPC, the period, during which a person has F
rendered service as a Public Prosecutor or as Assistant
Public Prosecutor, is treated as being in practice as an ·
advocate u/s 24(9) Cr.P.C. Thus, the rendering of service
as a PLblic Prosecutor or as Assistant Public Prosecutor
is deemed to be practice as an advocate. [para 74] [467- G
E-H; 468-A-B]

Sushma Suri v. Government of National Capital Territory
=
of Delhi and Another 1998 (2) Suppl. SCR 187 1999 (1)
sec 330 - relied on
H
406 SUPREME COURT REPORTS [2013] 1 S.C.R.

A Smt. Jyoti Gupta v. Registrar General, High Court of M. P.,
Jaba/pur and Another 2008 (2) MPLJ 486; K. Appadurai v
The Secretary to Government of Tamil Nadu and Another
2010-4-L.W.454 - approved

State of UP. & Another v. Johri Mal 2004 (1) Suppl.
B
SCR 560 = 2004 (4) SCC 714; Mahesh Chandra Gupta v.
Union of India and Others 2009 (10) SCR 921 = 2009
(8) SCC 273; State of U. P. v. Ramesh Chandra Sharma and
=
others 1995 (4) Suppl. SCR 383 1995 (6) SCC 527; Satish
Kumar Sharma v. Bar Council of H.P. 2001 (1) SCR
=
C 34 2001 (2) SCC 365; Sudhakar Govindrao Deshpande v.
State of Maharashtra and Others (1986) Labour & Industrial
Cases 710; K.R. Biju Babu v. High Court of Kera/a & Another
(2008) Labour & Industrial Cases 1784; Chandra Mohan
v. State of U.P. and Others AIR 1966 SC 1987; Sunil Kumar
D Goyal v. Rajasthan Public Service Commission 2003 (1)
Suppl. SCR 220 =2003 (6) SCC 171; Muku/ Dalal and
Others v. Union of India and Others 1988 (3) SCR 868 1988=
(3) SCC 144 Sidhartha Vashisht alias Manu Sharma v. State
=
(NCT of Delhi) 2010 (4) SCR 103 2010 (6) SCC 1; Shiv
E Kumar v. Hukam Chand and Another (1999) 7 SCC 467 and
Hitendra Vishnu Thakur and Others v. State of Maharashtra
and Others (1994) 4 SCC 602; Centre for Public Interest
Litigation and Others v. Union of India and Others 2012 (3)
SCC 117, Sheonandan Paswan v. State of Bihar and
=
F Others 1987 (1) SCR 702 1987 (1) SCC 288; S.B. Shahane
and Others v. State of Maharashtra and Another 1995 (3)
=
SCR 672 1995 Supp (3) SCC 37- referred to

Samarendra Das, Advocate v. State of West Bengal and
G Others 2004 (1) SCR 532 =2004 (2) sec 274 - overruled

Harry Berger v. United States of America 295 U.S. 78 -
referred to.

The Eighth United Nations Congress on the Prevention
H of Crime and the Treatment of Offenders; Standards of
DEEPAK AGGARWAL v. KESHAV KAUSHIK 407

Professional. Responsibility and Statement of the Essential A
Duties and Rights of Prosecutors; European Guidelines on
Ethics and Conduct for Public Prosecutors; The Budapest
Guidelines adopted in the Conference of Prosecutors
General of Europe on 31st May, 2005 - referred to
B
3.1. There is no doubt about the meaning of the
expression "advocate or pleader" in Art. 233(2) of the
Constitution. This should bear the meaning it had in law
preceding the Constitution and as the expression was
generally understood. The expression "advocate or
pleader" refers to legal practitioner and, thus, it means a C
person who has a right to act and/or plead in court on
behalf of his client. There is no indication in the context
to the contrary. It refers to the members of the Bar
practising law. The expression "advocate or pleader" in
Art. 233(2) has been used for a member of the Bar who D
conducts cases in court or, in other words acts and/or
pleads in court on behalf of his client. [para 77] [472-A-C]

Sushma Suri v. Government of National Capital Territory
=
of Delhi and Another 1998 (2) Suppl. SCR 187 1999 (1) E
sec 330 - relied on
Satish Kumar Sharma v. Bar Council of H.P. 2001
=
(1) SCR 34 2001 (2) SCC 365; Mallaraddi H. ltagi and
Others v. The High Court of Karnataka, Bangalore and
Another 2002 (4) Karnataka Law Journal 76; Mundrika F
Prasad Sinha v. State of Bihar 1980 (1) SCR 759 =
1979 AIR 1871; Kumari Shrilekha Vidyarthi and Others v.
State of U.P. and Others 1990 (1) Suppl. SCR 625 = 1991
(1) SCC 212; State of U.P. and Others v. U.P. State Law
Officers Association and Others 1994 (1) SCR 348 = 1994 (2) G
SCC 204 ; Gurjot Kaur and Others v. High Court of Jammu
and Kashmir and Another decided on 14.09.2010, Akhilesh
Kumar Misra and Others v. The High Court of Judicature at
Allahabad and Others AIR (1995) Allahabad 148 - referred
to. H
408 SUPREME COURT REPORTS [2013] 1 S.C.R.

A 3.2. What r. 49 of the BCI Rules provides is that an
advocate shall not be a full time salaried employee of any
person, government, firm, corporation or concern so long
as he continues to practice. The 'employment' spoken of
in r. 49 does not cover the employment of an advocate
B who has been solely or, in any case, predominantly
employed to act and/or plead on behalf of his client in
courts of law. If a person has been engaged to act and/
or plead in court of law as an advocate although by way
of employment on terms of salary and other service
c conditions, such employment is not what is covered by
r. 49 as he continues to practice law but, on the other
hand, if he is employed not mainly to act and/or plead in
a court of law, but to do other kinds of legal work, the
prohibition in r. 49 immediately comes into play and then
he becomes a mere employee and ceases to be an
0
advocate. The bar contained in r. 49 applies to an
employment for work other than conduct of cases in
courts as an advocate. In this view of the matter, the
deletion of second and third para by the Resolution dated
22.6.2001 has not materially altered the position insofar
E as advocates who have been employed by the State
Government or the Central Government to conduct civil
and criminal cases on their behalf in the courts are
concerned. [para 84] [476-C-G)

F 3.3. The Division Bench of the High Court has in
respect of all the five private appellants - Assistant
District Attorney, Public Prosecutor and Deputy Advocate
General - recorded undisputed factual position that they
were appearing on behalf of their respective States
G primarily in criminal/civil cases and their appointments
were basically under the C.P.C. or Cr.P.C. That means
their job has been to conduct cases on behalf of the State
Government/C.B.I. in courts. Each one of them continued
to be enrolled with the respective State Bar Council. In
H view of this factual position and the legal position, it_
DEEPAK AGGARWAL v. KESHAV KAUSHIK 409

cannot be said that these appellants were ineligible for A
appointment to the office of Additional District and
Sessions Judge. None of the five private appellants, on
their appointment as Assistant District Attorney/Public
Prosecutor/Deputy Advocate General, ceased to be
'advocate' and since each one of them continued to be B
'advocate', they cannot be considered to be in the service
of the Union or the State within the meaning of Art.
233(2). [para 87] [478-A-C-D-E]

4.1. As regards construction of the expression, "if he C
has been for not less than seven years an advocate" in
Art. 233(2) of the Constitution, this expression means
seven years as an advocate immediately preceding the
application and not seven years any time in the past. This
is clear by use of 'has been'. The present perfect
continuous tense is used for a position which began at D
some time in the past and is still continuing. Therefore,
one of the essential requirements articulated by the
expression in Art. 233(2) is that such person must with
requisite period be continuing as an advocate on the date
of application. [para 88] [478-F-H; 479-A] E

4.2. Rule 11 of the HSJS Rules provides for qualifications
for direct recruits in Haryana Superior Judicial Service.
Clause (b) of this rule provides that the applicant must have
been duly enrolled as an advocate and has practised for a F
period not less than seven years. Since these five private
appellants did not cease to be advocate while working as
Assistant District Attorney/Public Prosecutor/Deputy
Advocate General, the period during which they have been
working as such has to be considered as the period G
practising law. Thus, all of them have been advocates for
not less than seven years and were enrolled as advocates
and were continuing as advocates on the date of the
application. [para 89] [479-8-D]

5. This Court, accordingly, holds that the five private H
410 SUPREME COURT REPORTS [2013] 1 S.C.R.

A appellants (Respondent Nos. 9, 12, 13, 15 and 18 in CWP
No. 9157/2008 before the High Court) fulfilled the eligibility
under Art. 233(2) of the Constitution and r.11 (b) of the
HSJS Rules on the date of application. The impugned
judgment as regards them and is set aside. [para 90] [479-
B D-E]

Case Law Reference:

1980 (1) SCR 759 cited para 21

1988 (3) SCR 868 cited para 21
c
1990 (1) Suppl. SCR 625 cited para 21

AIR 1966 SC 1987 cited para 21
1985 (2) SCR 112 cited para 21
D
1998 (2) Suppl. SCR 187 cited para 21
2001 (1) SCR 34 cited para 21
2003 (1) Suppl. SCR 220 cited para 21
E 1961 SCR 874 referred to para 28
(2008) Labour & Industrial referred to para 39
Cases 1784
(1986) Labour & Industrial referred to para 39
F Cases 710

AIR (1995) Allahabad 148 referred to para 39
1£>94 (1) SCR 348 referred to para 49
G 1995 (3) SCR 672 relied on para 50
2004 (1) Suppl. SCR 560 referred to para 54
2009 (10) SCR 921 referred to para 55
2002 (4) Karnataka Law referred to para 56
H Journal 76
DEEPAK AGGARWAL v. KESHAV KAUSHIK 411

2008 (2) MPLJ 486 referred to para 60 A
2010-4-L.W.454 referred to para 61

1995 (4) Suppl. SCR 383 referred to para 62
2004 (1) SCR 532 overruled para 62 B
295 U.S. 78 referred to para 66

2010 (4) SCR 103 referred to para 72

201 o (6) sec 1 referred to para 72
c
(1994) 4 sec 602 referred to para 72

2012 (3) sec 111 referred to para 73
1987 (1) SCR 702 referred to para 73
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 561 D
of 2013.
From the Judgment & Order dated 18.05.2010 of the High
Court of Punjab & Haryana at Chandigarh in CWP No. 9157
of 2008.
E
WITH
562-567, 568-572, 573-578, 579-584, 585-590 & 591-596 of
2013.
P.P. Rao, B.H. Marlapalle, Mahabir Singh, Chetan F
Sharma, Rajiv Datta, Rupinder Singh Suri, Rakesh K. Khanna,
P.S. Patwalia, Raju Ramchandran, A.K. Ganguli, J.S. Attri, P.P.
Khurana, A. Mariarputham, Vikas Singh, Manjit Singh, AAG,
Mahalakshmi Pavani, G. Balaji, Apeksha Sharan, Mukesh
Kumar Singh, Ajay Sharma, Rajeev Sharma, Keshav Kaushik, G
Kanica, Govind N. Kaushik, Dr. Kailash Chand, S.S. Ray, R.S.
Gulia, Vaibhav Gulia, Rakhi Ray, Rakesh Dahiya, D.Mahesh
Babu, Sudeepa, Aman S. Bhardwaj, Shailendra Bhardwaj, Ajay
Veer Singh, R.K. Verma, Nitin Jain, Anisha Jain, Mohd. lrshad
Hanif, Pallavi Tayal, Bela Khattar Chauhan, Surender Chauhan, H
412 SUPREME COURT REPORTS [2013) 1 S.C.R.

A Vibhuti Sushant Gupta, Govind Narayan Kaushik, Seema Rao,
Ashok K. Mahajan, Nikhil Nayyar, T.V.S. Raghavendra Sreyas,
Pritha Srikumar, Siddharth Mittal, S.K. Sabharwal, Prashant
Bhushan, Rameshwar Prasad Goyal, Priyanka Bharihoke,
Jayshree Wad, Rajesh Singh Chauhan, Tamali Wad, Ashish
B Wad, Kanika Bhutani (for J.S. Wad & Co.), Annam D.N. Rao
Neelam Jain, Yusuf Khan, Sudhir Talwar, Nitin Mishra, Prashant
Chaudhary, Pratap Venugopal, Surekha Raman, Namrata
Sood, Ajay Sharma (for K.J. John & Co), Gurvinder Suri, J.H.
Jafri, Nidhi Gupta, Tarun Gupta, S. Janani, Gagan Gupta, Ajay
c Pal, P.O. Sharma, Ajay Bansal, Devendra Singh, Dhiraj Gupta,
Gaurav Yadav, Ajay Choudhary, Surya Kant, Dushyant Parasar,
Purnima Jauhari, Jayant Kumar Mehta, Sukant Vikram, Abhinav
Sharma, Pardeep Dahiya, Anupama Bansal, Achin Mittal, Shiel
Sethi, Ashwani Kumar, Rajeev Kumar Bansal, Akshay K. Ghai,
0 Sanjeev Bansal, Tarun Gupta, Rahul Kaushik, S. Wasim A.
Qadri, M.P.S. Tomar, B.V. Bairam Das, Sadhana Sandhu, Anil
Katiyar, Kamal Mohan Gupta, Sivan Madathil, Usha Nandini V.,
Biju P. Raman for the appearing parties.
The Judgment of the Court was delivered by
E R.M. LODHA, J. 1. Leave granted. What is the meaning
of the expression 'the service' in Article 233(2) of the
Constitution of India? What is meant by 'advocate' or 'pleader'
under Article 233(2)? Whather a District Attorney/Additional
District Attorney/Public Prosecutor/Assistant Public Prosecutor/
F Assistant Advocate General, who is full time employee of the
Government and governed and regulated by the statutory rules
of the State and is appointed by direct recruitment through the
Public Service Commission, is eligible for appointment to the
post of District Judge under Article 233(2) of the Constitution?
G These are the questions which have been raised for
consideration in this group of appeals.
2. The above questions and some other incidental
questions in these appeals have arisen from the judgment of
the Punjab and Haryana High Court delivered on 18.05.2010.
H
DEEPAK AGGARWAL v. KESHAV KAUSHIK 413
[R.M. LODHA, J.]

The Divi~ion Bench of the High Court by the above judgment A
disposed of 12 writ petitions wherein challenge was laid to the
selection and appointment of certain candidates to the post of
Additional District and Sessions Judge in the Haryana Superior
Judicial Service (HSJS) on diverse grounds. The High Court
by its judgment disposed of the writ petitions in the following B
manner:
"(A) Selections/appointments of respondents no. 9 -
(Dinesh Kumar Mittal), 12 (Rajesh Malhotra), 13 (Deepak
Aggarwal), 15 (Chandra Shekhar) and 18 (Desh Raj
Chalia) in CWP No. 9157 of 2008 (wherever they may be C
in other writ petitions) as Additional District and Sessions
Judges, are hereby quashed. This direction shall, however,
remain in abeyance for a period of two months to enable
the High Court to make alternative arrangements;
(B) As a consequence of the quashment of the selections/ D
appointments of above named respondents, the resultant
five vacancies shall be filled up from the candidates next
in the order of merit, out of the panel prepared by the
Selection Committee;
(C) The appointment of Fast Track Court Judges by a E
process of absorption after further examination and
selection contained in the recommendation of the
Selection Committee dated 18.03.2008 is affirmed.
{D) Order dated 22.09.2008 (Annexure P-8 in CWP No. F
17708 of 2008 rejecting the request of the High Court for
de-reservation of six vacancies (four Scheduled Caste, 2
Backward Classes) is hereby quashed. Resultantly, the
matter is remitted back to the Government to re-consider
the request of the High Court for de-reservation in relaxation G
of rules by the competent authority empowered under the
Government instructions dated 7.9.2008 and Rule 31 of the
Haryana Superior Judicial Service Rules, 2007. The
process of re-consideration shall be completed within six
weeks and the decision be communicated to the High
Court. H
414 SUPREME COURT REPORTS [2013] 1 S.C.R.

A (E) If on such re-consideration, the State decides to de-
reserve the vacancies, candidates recommended by the
High Court vide its recommendation letter dated
25.4.2008, shall be appointed."
3. The appellants in this group of seven appeals are,
B Deepak Aggarwal, Dinesh Kumar Mittal, Rajesh Malhotra,
Chandra Shekhar and Desh Raj Chalia, whose selections/
appointments as Additional District and Sessions Judges have
been quashed by the High Court, and the Punjab and Haryana
High Court, Chandigarh on its administrative side.
c
4. On 18.05.2007, the Punjab and Haryana High Court,
Chandigarh through its Registrar General issued a notification
inviting applications for recruitment to certain posts of Additional
District and Sessions Judge. The written examinations were
D conducted pursuant to the said notification wherein 64
candidates were recommended for the interview. After
conducting the interview, the High Court recommended the
names of 16 candidates in order of merit to the post of
Additional District and Sessions Judge in the State of Haryana
E by direct recruitment. Of the 16 candidates recommended by
the High Court, 5 were the appellants. At the time of
appointment, Deepak Aggarwal was working as Assistant
District Attorney in Himachal Pradesh; Chandra Shekhar and
Desh Raj Chalia were working as Assistant District Attorney
F in the State of Haryana, Rajesh Malhotra was working as Public
Prosecutor in the office of Central Bureau of Investigation and
Dinesh Kumar Mittal was working as Deputy Advocate General
in the office of the Advocate General, Punjab.

5. Based on the recommendation of the High Court, the
G State of Haryana issued appointment orders. Some of the
unsuccessful candidates filed writ petitions before the High
Court raising diverse grounds of challenge. However, as
indicated above, the appointments of five appellants who were
working as Assistant District Attorney/Public Prosecutor/Deputy
H
DEEPAK AGGARWAL v. KESHAV KAUSHIK 415
[R.M. LODHA, J.]
Advocate General have been quashed holding that they did not A
have the requisite criteria to qualify for the recruitment as
contemplated in Article 233 of the Constitution and that some
of the candidates did not have requisite experience.
6. Article 233 of the Constitution of India provides for
appointment of District Judges. It reads as follows: 8

"233. Appointment of district judges.-(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 C
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 · o
Court for appointment."
7. Haryana Superior Judicial Service Rules, 2007 (for short,
'HSJS Rules') regulate the appointment of subordinate judges
in the State of Haryana. Part Ill of these Rules deals with method
of recruitment. Rules 5, 6 and 11 of the HSJS Rules are relevant E
for the purposes of consideration of these appeals and they
read as under :
"R.5. Recruitment to the Service shall be made by the
Governor,-
F
(i) by promotion from amongst the Haryana Civil
Service (Juaicial Branch) in consultation with
the High Court; and
(ii) by direct recruitment from amongst eligible
Advocates on the recommendations of the G
High Court on the basis of the written and
viva voce test conducted by the High Court.
R.6. (1) Recruitment to the Service shall be made,-
(a) 50 per cent by promotion from amongst the Civil H
416 SUPREME COURT REPORTS [2013] 1 S.C.R.

A Judges (Senior Division)/Chief Judicial
Magistrates/Additional Civil Judges (Senior
Division) on the basis of principle of merit-cum-
seniority and passing a suitability test;
(b) 25 per cent by promotion strictly on the basis
B of merit through limited competitive examination of
Civil Judges (Senior Division) having not less than
five years qualifying service as Civil Judges (Senior
Division)/Chief Judicial Magistrates/Additional Civil
Judges (Senior Division); and who are not less than
c thirty five years of age on the last date fixed for
submission of applications for taking up the limited
competitive examinations; and
(c) 25 per cent of the posts shall be filled by direct
recruitment from amongst the eligible Advocates on
D the basis of the written and viva voce test,
conducted by the High Court.
(2) The first and second post would go to category (a) (by
promotion on the basis of merit-cum-seniority), third post
E would go to category (c) (direct recruitment from the bar)
and fourth post would go to category (b) (by limited
competitive examination) of rule 6, and so on.
R. 11. The qualifications for direct recruits shall be as
follows:
F (a) must be a citizen of India;
(b) must have been duly enrolled as an Advocate and
has practiced for a period not less than seven
years;
G (c) must have attained the age of thirty five years and
have not attained the age of forty five years on the
1st day of January of the year in which the
applications for recruitment are invited."
8. It will be convenient at this stage to refer to some other
H provisions which have bearing in the matter and are relevant
DEEPAK AGGARWAL v. KESHAV KAUSHIK 417
[R.M. LODHA, J.]
for the purpose of these appeals. Section 2(u) of the Code of A
. Criminal Procedure, 1973 (for short, 'Cr.P.C.') defines 'Public
Prosecutor' to mean any person appointed under Section 24
and includes any person acting under the directions of a Public
Prosecutor. Section 24 deals with 'Public Prosecutors'. It reads
as under: B
"24. Public Prosecutors,- (1) For every High Court, the
Central Government or the State Government shall, after
consultation with the High Court, appoint a Public
Prosecutor and may also appoint one or more Additional
Public Prosecutors for conducting in such court, any C
prosecution, appeal or other proceeding on behalf of the
Central Government or State Government, as the case
may be.
(2) The Central Government may_ appoint one or more
0
Public Prosecutors for the purpose of conducting any case
or class of cases in any district, or local area.
(3) For every district the State Government shall appoint
a Public Prosecutor and may also appoint one or inore
Additional Public Prosecutors for the district: E
Provided that the Public Prosecutor or Additional Public
Prosecutor appointed for one district may be appointed
also· to be a Public Prosecutor or an Additional Public
Prosecutor, as the case may be, for another district.
(4) The District Magistrate shall, in consultation with the
F
Sessions Judge, prepare, a pan.el of names of persons,
who are, in his opinion fit to be appointed as Public
Prosecutors or Additional Public Prosecutors for the
district.
G
(5) No person shall be appointed by the State Government
as the Public Prosecutor or Additional Pu.blic Prosecutor
for the district unless his name appears in the panel of
names prepared by the District Magistrate under sub-
section (4).
H
418 SUPREME COURT REPORTS [2013] 1 S.C.R.

A (6) 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 the persons constituting such Cadre:
B Provided that where, in the opinion of the State
Government, no suitable person is available in such Cadre
for such appointment that Government may appoint a
person as Public Prosecutor or Additional Public
Prosecutor, as the case may be, from the panel of names
c prepared by the District Magistrate under sub-section (4).
Explanation - For the purposes of this sub-section,-
(a) "regular Cadre of Prosecuting Officers" means a Cadre
of Prosecuting Officers which includes therein the post of
D a Public Prosecutor, by whatever name called, and which
provides for promotion of Assistant Public Prosecutors, by
whatever name called, to that post;
(b) "Prosecuting Officer" means a person, by whatever
name called, appointed to perform the functions of a
E Public Prosecutor, an Additional Public Prosecutor or an
Assistant Public Prosecutor under this Code.
(7) A person shall be eligible to be appointed as a Public
Prosecutor or an Additional Public Prosecutor under sub-
section (1) or sub-section (2) or sub-section (3) or sub-
F section (6), only if he has been in practice as an advocate
for not less than seven years.
(8) The Central Government or the State Government may
appoint, for the purposes of any case or class of cases, a
G person who has been in practice as an advocate for not
less than ten years as a Special Public Prosecutor:
"Provided that the Court may permit the victim to
engage an advocate of his choice to assist the
prosecution under this sub-section."
H
DEEPAK AGGARWAL v. KESHAV KAUSHIK 419
[R.M. LODHA, J.]
(9) For the purposes of sub-section (7) and sub~section A
(8), the period during which a person has been in practice,
as a pleader,, .or has rendered (whether before or after the
commencement ofthis Code) service as a Public
Prosecutor or as an Additional Public Prosecutor or
Assistant Public Prosecutor or other Prosecuting Officer, B
by whatever name called, shall be deemed to be the period
during which such person has been in practice as an
advocate."
9. Some of the States have amended Section 24 Cr.P.C.
Insofar as Haryana is concerned, an explanation has been C
added to sub-section (6) of Section 24 with effect from
29.11.1985 which provides that for the purpose of sub-section
(6), the persons constituting the Haryana State Prosecution
Legal Service (Group A) or Haryana State Prosecution Legal
Service (Group B) shall be deemed to be a regular Cadre of D
Prosecuting Officers.
10. Section 25 Cr.P.C deals with Assistant Public
Prosecutors for conducting prosecutions in the court of
Magistrates. Section 25A was brought in the Cr.P.C. by Act 25
of 2005. It, inter alia, provides that the State Government may E
establish a Directorate of Prosecution consisting of a Director
of Prosecution and as many Deputy Directors of Prosecution
as it thinks fit. Sub-section (5) of Section 25A makes a
provision that every Public Prosecutor, Additional Public
Prosecutor and Special Public Prosecutor appointed by the F
State Government under sub-section (1) or under sub-section
(8) of Section 24 to conduct cases in the High Court shall be
subordinate to the Director of Prosecution. In terms of sub-
section (6) of Section 25A, every Public Prosecutor, Additional
Public Prosecutor and Special Public Prosecutor appointed by G
the State Government under sub-section (3) or under sub-
section (8) of Section 24 to conduct cases in district courts and
every Assistant Public Prosecutor appointed under sub-section
(1) of Section 25 shall be subordinate to the Deputy Director
of Prosecution. Sub-section (8), however, clarifies that the H
420 SUPREME COURT REPORTS [2013] 1 S.C.R.

A Advocate General for the State while performing the functions
of public prosecutor shall not be covered by Section 25A.
11. Section 2(7) of the Code of Civil Procedure, 1908 (for
short, 'CPC') defines 'government pleader'. According to this
provision, 'government pleader' includes any officer appointed
B by the State Government to perform all or any of the functions
expressly imposed by the CPC on the government pleader and
also any pleader acting under the directions of the government
pleader.
C 12. Section 2(15) CPC defines 'pleader' which means any
person entitled to appear and plead for another in court, and
includes an advocate, a vakil and an attorney of a High Court.
13. Prior to Indian Advocates Act, 1961, [The Indian] Bar
Councils Act, 1926 (for short, '1926 Act') dealt with the functions
o of the Bar Council and the admission and enrolment of
advocates. Section 2(1 )(a) of the 1926 Act had defined
'advocate' as meaning an advocate entered in the roll of
advocates of a High Court under the provisions of that Act.
14. Section 8(1) of the 1926 Act provided as under:
E
"8. Enrolment of advocates. - (1) No person shall be
entitled as of right to practice in any High Court, unless his
name is entered in the roll of the advocates of the High
Court maintained under this Act:
F Provided that nothing in this sub-section shall apply to any
attorney of the High Court."
15. Section 9 of the 1926 Act dealt with qualifications and
admission of advocates while Section 14 provided for right of
advocates to practice.
G
16. On constitution of the State Bar Council under the
Advocates Act, 1961 (for short, '1961 Act'), the relevant
provisions of the 1926 Act stood repealed. Section 17 of the
1961 Act provides that every State Bar Council shall prepare
and maintain a roll of advocates. It further provides that no
H
DEEPAK AGGARWAL v. KESHAV KAUSHIK 421
[R.M. LODHA, J.]
person shall be enrolled as an advocate on the roll of more than A
one State Bar Council. Section 24 provides for the eligibility
of the persons who may be admitted as advocates on Sta,te
roll. Inter alia, it states that a person shall be qualified to be
admitted as an advocate on a State roll if he fulfills such other
conditions as may be specified in the rules made by the State B
Bar Council under Chapter Ill. Section 28 empowers a State
Bar Council to make rules to carry out the purposes of Chapter
Ill. Clause (d), sub-section (2) of Section 28 states that such
rules may provide for the conditions subject to which a person
may be admitted as an advocate on the State roll. Chapter IV c
of the 1961 Act deals with the right to practice. This Chapter
'
comprises of five sections. Section 29 provides that from the
appointed day, there shall be only one class of persons entitled
to practice profession of law, namely, advocates. Section 30
provides for right of advocates to practice. Section 33 makes 0
a provision that except as otherwise provided in the Act or in
any other law for the time being in force, no person shall on or
after the appointed day, be entitled to practice in any event or
before any authority or person unless he is enrolled as advocate
under the Act.
E
17. Section 49 gives power to the Bar Council of India to
make rules for discharging its functions and also to frame rules
in respect of the subjects enumerated in clauses (a) to 0).
Clause (ah) deals with the conditions subject to which an
advocate shall have the right to practice and the circumstances F
under which a person shall be deemed to practice as an
advocate in a court. The first proviso following the main Section
provides that no rules made with reference to clause (c) or (gg)
shall have effect unless they have been approved by the Chief
Justice of India. The second proviso provides that no rules G
made with reference to clause (e) shall have effect unless they
have been approved by the Central Government. Pursuant to
the power given under Section 49, the Bar Council of India has
framed the Bar Council of India Rules (for short, 'BCI Rules').
Rule 43 provides that an advocate, who has taken a full-time H
service or part-time service or engaged in business or any
422 SUPREME COURT REPORTS [2013] 1 S.C.R.

A avocation inconsistent with his practising as an advocate, shall
send a declaration to that effect to the respective State Bar
Council within 90 days. On his failure to do so or in the absence
of sufficient cause for not doing so, he may face suspension
of licence to practice. Prior to 2001, Rule 49 of the BCI Rules
B read as under :
"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 practice, and shall, on taking
up any such employment, intimate the fact to the Bar
c Council on whose roll his name appears, and shall
thereupon cease to practice 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 a State or of any Public
D Corporation or body constituted by statute 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.
E 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.
18. By resolution dated 22.06.2001, the Bar Council of
F India deleted the second and third para of the above rule. The
said resolution was published in the Government Gazette on
13.10.2001. The Chief Justice of India gave his consent to the
said deletion on 23.04.2008. Rule 49 in its present form,
consequent on amendment, reads as under:
G "An advocate shall not be a full-time salaried employee of
any person, government, firm, corporation or concern, so
long as he continues to practice, and shall, on taking up
any employment, intimate the fact to the Bar Council on
whose roll his name appears, and shall thereupon cease
H
DEEPAK AGGARWAL v. KESHAV KAUSHIK 423
[R.M. LODHA, J.]
to practise as an advocate so long as he continues in such A
employment".
19. The High Court has held, and in our view rightly, that
the consent of Chief Ju$tice of India was not needed because
rule in respect of eligibility is traceable to clause (ah). The
amendment thus became effective in any case on its publication 13
in the Government Gazette on 13.10.2001.
20. The High Court while considering the issue relating to
eligibility of the appellants for selection and appointment under
Article 233(2), dealt with Sections 17, 22, 24, 29 and 33 of the C
1961 Act and Rule 49 of the BCI Rules and observed that an
advocate could not be a full-time salaried employee of any
. person, government, firm, corporation or concern so long as he
continues to practice.
21. The High Court referred to various decisions including o
decisions of this Court in Mundrika Prasad Sinha v. State of
Bihar1, Mukul Dalal and others v. Union of India and Others2,
Kumari Shrilekha Vidyarthi and Others v. State of U.P. and
. Others3, Chandra Mohan v. State of U.P. and Others", Satya
Narain Singh v. High Court of Judicature at Allahabad and E
Others 5, Sushma Suri v. Government of National Capital
Territory of Delhi and Another6, Satish Kumar Sharma v. Bar
Council of H.P. 7, Sunil Kumar Goyal v. Rajasthan Public
Service Commission 8 and finally held that Dinesh Kumar Mittal,
Rajesh Malhotra, Deepak Aggarwal, Chandra Shekhar and F
Desh Raj Chalia were ineligible at the time of their appointment

1. AIR 1979 SC 1871.
2. (19881) 3 sec 144.
3. (1991) 1 SC 212. G
4. AIR 1966 SC 1987.
5. (1985) 1 sec 225.
· 6. (1999) 1 sec 330.
1. c2001) 2 sec 365.
8. c2003) 6 sec 111. H
424 SUPREME COURT REPORTS [2013] 1 S.C.R.

A as Additional District and Sessions Judge. The Bench
formulated its opinion on account of the following :
"They were in regular government service with the Union
or the State. Their recruitment to the posts of Deputy
Advocate General, Assistant District Attorney's/
B Prosecutors was pursuant to their selection by the
respective Public Service Commission/Government. All of
them were in the graded pay scale and subjected to all
rigors of service conditions of a government servant known
to service jurisprudence. We may not be misunderstood
c to mean that the Law Officers as a genre are ineligible for
judicial appointment. Disqualification/ineligibility is
attracted only to such category of Law Officers who opt for
regular Government employment. However, no such
ineligibility is attached to the other category of Law Officers
D who are practicing lawyers and are engaged on behalf of
the Government or any other organization/authority, even
on salary to appear on their behalf either under any
contractual arrangement or on case to case basis, without
subjecting themselves to the conditions of regular
E government employment such as the Advocate General,
Additional Advocate General in the State, Assistant
Solicitor General or Central Government Standing counsel
or any other Law Officer engaged by various Government
Corporations or otherwise who are engaged to represent
F them in courts of law."
22. The High Court also held that except Rajesh Malhotra,
the other four, namely, Dinesh Kumar Mittal, Deepak Aggarwal,
Chandra Shekhar and Desh Raj Chalia were having less than
seven years of practice at the Bar before their engagement as
G Assistant District Attorneys/Public Prosecutors.
23. Mr. P.P. Rao, learned senior counsel who led the
arguments on behalf of the appellants, argued that Article
233(2) of the Constitution is a self-contained Code. Service of
a Public Prosecutor or an Assistant Public Prosecutor or a
H Government Pleader does not render a person ineligible for
DEEPAK AGGARWAL v. KESHAV KAUSHIK 425
[R.M. LODHA, J.]
appointment as a District Judge if he has been for not less than A
seven years an advocate or a pleader. According to him, it is
open to the State to appoint a Government Pleader in terms
of Section 2(7) of C.P.C. for conducting civil cases and Public
Prosecutors under Section 24 of Cr.P.C. for criminal cases on
mutually agreed terms, either on a case to case basis or piece- B
rate basis for each item of work done or on a tenure basis or
on a permanent basis. Though called 'appointment', it is in
reality and in substance an engagement of an advocate for
conducting cases in courts. Advocates with experience are only
eligible for these posts and even after appointment as c
Government Pleader or Public Prosecutor or Assistant Public
Prosecutor or Assistant District Attorney, their job is exclusively
or mainly to conduct cases as advocates in courts. The nature
of their functions remains the same. They are always Officers
of the Court. 24. It was submitted by Mr. P.P. Rao that the 1961 0
Act and the BCI Rules, including Rule 49 , must be read
harmoniously with the relevant provisions of C.P.C. and Cr.P.C.
having regard to the object and scheme of appointment of the
Government Pleaders, Public Prosecutors, Assistant Public
Prosecutors or Assistant District Attorneys etc. He contended E
that rule making power by Bar Council of India cannot be
exercised inconsistent with the provisions contained in CPC
and Cr.P.C; it is not an overriding power and the persons who
are eligible in terms of Article 233(2) of the Constitution cannot
be made ineligible by a rule made by the Bar Council of India.
According to him, the meaning of the word, 'advocate' F
occurring in Article 233(2) must be fixed and identified which
the Constitution makers had in mind. Neither the 1961 Act nor
the BCI Rules framed thereunder can curtail the meaning of the
word 'advocate' that is understood under Article 233(2) of the
Constitution. ·· G
25. Mr. P.P. Rao, learned senior counsel submitted that it
could never be the intention of the Bar Council of India when it
made Rule 49 that appointment of advocate by the Government
for conducting its cases in courts as an advocate on a full time H
426 SUPREME COURT REPORTS [2013] 1 S.C.R.

A salary basis would attract the bar in Rule 49. The bar applies
to employees engaged for work other than conducting cases
in courts as advocates. He suggested that in order to save the
operation of Rule 49, it needs to be read down and the test
laid down by this Court in Satish Kumar Sharma 7 and Sushma
B Suri6 must be applied, i.e. whether a person is engaged to act
and/or plead in a court of law as an advocate and not whether
such person is engaged on terms of salary or payment of
remuneration. In his view, what is important is not the
employment but the functions that a Public Prosecutor or a
c Government Pleader discharges.
26. The contention of Mr. P.P. Rao is that the BCI Rules
cannot override the operation of any law made by the
Parliament, including the CPC or the Cr.P.C., much less Article
233(2) of the Constitution which contains the word 'advocate'
D having a definite meaning i.e., person enrolled as a member
of the Bar to conduct cases in courts. He highlighted the
consistent practice before the Constitution and after the
Constitution of the Government Pleaders and Public
Prosecutors on regular or permanent basis with fixed
E emoluments being appointed as District Judges by way of
direct recruitment in view of their experience in conducting
government cases. He submitted that to declare them ineligible
would defeat the object of recruitment underlying Article 233(2)
of the Constitution.
F 27. Mr. AK. Ganguli, learned senior counsel appearing in
the appeals preferred by Dinesh Kumar Mittal adopted the
arguments of Mr. P.P. Rao and further submitted that it is right
to practice that determines whether one is advocate or not and
that is what must be understood by the term 'advocate'
G occurring in Article 233(2) of the Constitution.
28. Mr. B.H. Marlapalle, learned senior counsel for the
appellant Desh Raj Chalia, submitted that Article 233(2)
provided two different sources of appointment to the post of
District Judge, namely, by promotion from service and by
H nomination from the law practitioners with practice of not less
DEEPAK AGGARWAL v. KESHAV KAUSHIK 427
[R.M. LODHA, J.]
than seven-years. The requirement of practice for not less than A
seven-years is only for the appointment by nomination. He
relied upon decisions of this Court in Rameshwar Dayal v.
State of Punjab and Others9 , Chandra Mohan 4 and Satya
Narain Singh 5 • Learned senior counsel argued that Section 24,
Cr.P.C. is the source of power for appointment of the Public B
Prosecutor/Additional Public Prosecutor either as part of the
regular service cadre or from the panel prepared by the District
Magistrate. The scheme of Section 24 Cr.P.C. cannot be
allowed to be defeated by Rule 49 of the BCI Rules as
amended by the resolution dated 22.06.2001. Learned senior c
counsel submitted that i;I Public Prosecutor appointed by State
Government as a part of regular service cadre cannot be
excluded from the scheme of Section 30 of the 1961 Act just
because he has chosen to appear for the State Government.
Any law practitioner/advocate has the choice to restrict his
0
practice. He heavily relied upon the observations made by this
Court in paragraphs 6, 10 and 11 of the decision in Sushma
Surf' and submitted that principles laid down therein were fully
applicable to the appellant's submission that he is eligible for
being selected by nomination to the post of District Judge from E
amongst the law practitioners.
29. Mr. B.H. Marlapalle referred to various provisions of
the 1961 Act and Rule 49 of the BCI Rules and submitted that
any person who is a law officer of the State/Central Government
and who by the said term is required to act and plead in a court F
on behalf of his employer is entitled to be admitted as an
advocate to the State roll. Rule 49, as amended by the Bar
Council of India, cannot be interpreted to mean that every
Public Prosecutor/Additional Public Prosecutor, who is
appointed by the State Government as a part of regular service G
cadre, ceases to be an advocate. If a Public Prosecutor
forming part of service cadre, ceases to be an advocate then
his tenure as a Public Prosecutor under Section 24, Cr.P.C.

9. AIR 1961 SC 816. H
428 SUPREME COURT REPORTS [2013] 1 S.C.R.

A would automatically come to an end. Such an interpretation of
Rule 49 of the BCI Rules would not be proper.
30. Learned senior counsel also challenged the finding
recorded by the High Court with regard to appellant Desh Raj
Chalia that he did not complete seven years of law practice.
B According to him, his tenure as Assistant District Attorney was
required to be counted for the purpose of computing period of
practice and the appellant had completed more than 11 years
of law practice.
31. Mr. S.S. Ray, learned counsel appearing for one of the
C appellants, argued that the amendment to Rule 49 in 2001 has
not affected the position of the appellant as an advocate in any
manner and the judgment of this Court in Sushma Suri6 is
squarely applicable. Learned counsel would submit that
'advocate' means any person who pleads for his client. The
D word, 'advocate' is genus whereas expressions, Law Officer/
Assistant District Attorney/Public Prosecutor are species. They
are covered within the meaning of term 'advocate'. Suspension
of the licence or deleting the name from the roll of advocates
cannot exclude a Public Prosecutor or Assistant District
E Attorney from the definition of word 'advocate'. He further
argued that if Public .Prosecutor and Assistant District Attorney
are taken out from the definition of 'advocate' then they cannot
plead the case before the court even on behalf of the
Government. He submitted that the provisions contained in
F CPC and Cr.P.C. should prevail over the BCI Rules. With
regard to interpretation of Article 233(2), he adopted the
arguments of Mr. P.P. Rao.
32. Mr. Raju Ramchandran, learned senior counsel
appeared for the High Court of Punjab and Haryana on
G administrative side. He submitted that District Attorney, Public
Prosecutor and Assistant Advocate General are in essence
lawyers. Even though Rule 49 was amended by the Bar Council
of India, yet under the amended rule District Attorneys, Public
Prosecutors/Assistant Advocate General continue to appear as
H
DEEPAK AGGARWAL v. KESHAV KAUSHIK 429
[R.M. LODHA, J.]
advocates as they continue to have their licence. Rule 49 per A
se does not bar them from appearing before a court. Reference
was made to the provisions of Haryana State Prosecution Legal
Service (Group 'C') Rules, 1979 to show that the Government
Pleader and Public Prosecutor may be fully engaged by the
Government but in essence they are lawyers representing the B
Government. He submitted that High Court failed to notice the
explanation to Section 24(6) and its interplay with Section 24(9)
Cr.P.C. Learned senior counsel suggested that the t!'lst
enunciated in Sushma Suri6 , namely, whether he is engaged
to act or plead on behalf of the employer in a court of law as c
an advocate should be applied to find out whether the private
appellants whose appointments have been cancelled met the
prescribed eligibility or not.
33. Learned senior counsel sought to distinguish the
decision of this Court in Malfaraddi H. ltagi & Ors. v. High D
Court of Karnataka by highlighting that Karnataka Department
of Prosecution and Government Litigation Recruitment Rules,
1962 did not allow the Public Prosecutors to appear as
advocates before the Court; the candidates therein admitted
that they were government servants; and the candidates therein E
had surrendered their licence. .,
34. A plea of estoppel was also raised on behalf of the
High Court and it was submitted that the writ petitioners were
estopped from challenging the selection process as they had
taken a chance to get selected and after having remained F
unsuccessful, they have now challenged the appointment of
successful candidates.
35. On the other hand, Mr. Prashant Bhushan, learned
counsel for the respondent - Keshav Kaushik (writ petitioner G
before the High Court) in the appeal preferred by Deepak
Aggarwal, referred to Article 233(2) of the Constitution and
submitted that in order to be eligible, the candidate must not
be in the service of Union or the State and must have been an
advocate for at least seven years. It was submitted that the
r H
430 SUPREME COURT REPORTS [2013] 1 S.C.R.

A expression, "if he has been for not less than seven years an
advocate" must be read to mean seven years immediately
preceding his appointmenU application. It cannot mean any
seven years any time in the past. If that interpretation were to
be accepted, it would mean that a person who is enrolled as
B an advocate for seven years and thereafter took up a job for
the last twenty years would also become eligible for being
appointed as District Judge. This would defeat the object of the
qualification prescribed in Article 233(2).
36. Mr. Prashant Bhushan contended that a Public
C Prosecutor being a full time employee of the Government,
ceases to be an advocate by virtue of Rule 49 of the BCI Rules.
The candidates whose appointment was challenged were in full
time employment of the Government; were liable to be
transferred and posted with the Government Companies as law
D officers and they have several functions other than
appearances in courts as Public Prosecutors. Merely because
one of the functions of these Public Prosecutors is to appear
in courts would not make them advocates and eligible for
appointment under Article 233 (2) of the Constitution. He
E justified the view of the High Court.
37. Mr. P.S. Patwalia, learned senior counsel also arguing
for respondent no. 1 in the appeal by Chandra Shekhar,
submitted that Rule 49 expressly debars a person from
practising as an advocate on taking up employment. Rule 43
F of BCI Rules makes it imperative on any such person to file a
declaration within 90 days on taking up employment failing
which the State Bar Council can suspend the licence of such a
person to practice. It was submitted that full time employees
have a limited right of appearance before the courts by virtue
G of Section 24 Cr.P.C. and Section 2(7) C.P.C. Such employees
can only appear in briefs marked to them by State Government
for specified courts.
38. Chapter IV of the 1961, Act which deals with right to
practice, was referred to by the learned senior counsel,
H particularly, Sections 29 to 33, and it was submitted that on a
DEEPAK AGGARWAL v. KESHAV KAUSHIK 431
[R.M. LODHA, J.]
conjoint reading of these provisions with Rules 43 to 49 of the A
BCI Rules and Section 24 Cr.P.C. and Section 2(7) C.P.C.,
Additional District Attorney/Public Prosecutor/Assistant
Advocate General cannot be said to practice law. Reference
was made to the Resolution passed by Bar Council of India in
this regard which provides that if a Public Prosecutor/Additional B
District Attorney is a whole time employee drawing regular
salary, he will not be entitled to be enrolled as an advocate.
39. In support of the above submissions, Mr. P.S. Patwalia
relied upon decision of this Court in Satish Kumar Sharma7
and a decision of this Court in Mallaraddi H. Jtagi. Reference C
was also made to the decision of the Karnataka High Court in
Mal/araddi H. ltagi from which the appeals were preferred
before this Court. Learned senior counsel submitted that the
view taken by Karnataka High Court and upheld by this Court
is the view which has been taken by various other high courts, D
namely, Kerala High Court in K.R. Biju Babu v. High Court of
Kera/a & Another10, Jammu and Kashmir High Court in Gurjot
Kaur and Others v. High Court of Jammu and Kashmir and
Another decided on 14.09.2010, Bombay High Court in
Sudhakar Govindrao Deshpande v. State of Maharashtra and E
Others11 , Allahabad High Court in Akhilesh Kumar Misra and
Others v. The High Court of Judicature at Allahabad and
Others12 Rajasthan High Court in Pawan Kumar Vashistha v.
High Court of Judicature for Rajasthan, Jodhpur and Another
decided on 21.02.2012. F
40. Mr. P.S. Patwalia referred to Article 233(2) of the
Constitution and the decision of this Court in Chandra Mohan4
and submitted that a person already employed in the executive
service of a State is ineligible to be appointed. He heavily
relied upon paragraphs 49 and 50 of the impugned judgment G
and submitted that the findings returned by the High Court were
in accord with law.
10. (2008) Labour & Industrial Cases 1784.
11. (1986) Labour & Industrial Cases 710.
12. AIR (1995) Allahabad 148. H
432 SUPREME COURT REPORTS [2013] 1 S.C.R.

A 41. On behalf of the respondents in the appeal by Dinesh
Kumar Mittal, it was submitted that Article 233(2) of the
Constitution lays down three essentials for appointment of a
person to the post of District Judge and all of them are
mandatorily required to be fulfilled and are to be read
B simultaneously. It was submitted that independence of judiciary
is the basic structure of the Constitution. The Public
Prosecutors holding a regular post in regular pay scale are
government servants and they can not be treated as 'advocate'
within the meaning of Sections 24, 29 and 30 of the 1961 Act
c read with Rule 49 of the BCI Rules. It was suggested that the
words "has been" in Article 233(2) must be read to mean the
advocate or p:eader who continues to be so at the time of his
appointment.
42. Article 233 of the Constitution makes provision for
D appointment and qualification for District Judges. Under clause
(1) of Article 233 no special qualifications are laid down. The
Governor can appoint a person who is already in service of the
Union or of the State as a District Judge in consultation with
the relevant High Court. Clause (2) of Article 233 lays down
E three essentials for appointment of a person to the post of
District Judge; (i) a person shall not be in service of the Union
or of the State; (ii) he has been for not less than seven years
an advocate or a pleader; and (iii) his name is recommended
by the relevant High Court for appointment. In other words, as
F regards a person not already in service what is required is that
he should be an advocate or pleader of seven years' standing
and that his name is recommended by the High Court for
appointment as District Judge. We have to find out what is the
meaning of the expression "the service" under Article 233 (2)
G of the Constitution. The expression "the service" occurring in
clause (2) of Article 233 came up for consideration before a
Constitution Bench of this Court in Chandra Mohan 4 •
43. In the case of Chandra Mohan4 the facts were these:
during 1961 and 1962, the Registrar of the Allahabad High
H Court called for applications for recruitment with regard to ten
DEEPAK AGGARWAL v. KESHAV KAUSHIK 433
[R.M. LODHA, J.]

vacancies in the Uttar Prade"sh Higher Judicial Service from A
Barristers, Advocates, Vakils and Pleaders of more than seven
years' standing and from judicial officers. The Selection
Committee, constituted under the Rules, selected six
candidates for appointment to the said service. The three of
the selected candidates were advocates and three were judicial B
officers. The Selection Committee sent two lists, one comprising
the names of three advocates and the other comprising the
names of three judicial officers to the High Court. Chandra
Mohan, who was Member of U.P. Civil Services (Judicial
Branch) and who was at that time acting as a District Judge, c
and some other officers who were similarly situated, filed writ
petitions in the High Court of Allahabad under Article 226
challenging the selection of the six candidates for appointment
to the U.P. Higher Judicial Service. The matter was heard by
the Division Bench. The members of the Bench agreed that 0
selection from the. Bar was good but as regards selection from
the cadre of judicial officers, there was difference of opinion
on the aspect of non-issuance of notification under Article 237
of the Constitution. The matter was referred to a third Judge
who agreed with one of the Judges who held that selection from E
the judicial officers was also good. Thus, the writ petitions were
dismissed. The High Court on the application for certificate to
appeal to this Court certified the case a fit one for appeal,
consequently, the appeal was filed. As there was some debate
on the scope of the certificate granted by the High Court, this
Court also granted Special Leave to Appeal against the order F
of the High Court. Diverse arguments were advanced on behalf
of the appellants before this Court. While dealing with the
question whether the Governor can directly appoint persons
from services other than the judicial service as District Judges
in consultation with the High Court and on a further question G
whether the Governor can appoint judicial officers as District
Judges, this Court .dealt with Articles 233, 234, 236 and 237
of the Constitution and observed in paragraph 15 of the Report
(pgs. 1993-94) as follows:
H
434 SUPREME COURT REPORTS [2013] 1 S.C.R.

A "The gist of the said provisions may be stated thus.
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. There are two sources of
recruitment namely (i) service of the Union or of the State,
B and (ii) members of the Bar. The said Judges from the first
source are appointed in consultation with the High Court
and those from the second source are appointed on the
recommendation of the High Court. But in the case of
appointments of persons to the judicial service other than
c as district Judges they will be made by the Governor of
the State in accordance with rules framed by him in
consultation with the High Court and the Public Service
Commission. But the High Court has control over all the
district Courts and Courts subordinate thereto, subject to
certain prescribed limitations."
D
This Court then in paragraphs 16 and 17 (pg. 1994) of the
Report observed as follows:
"16. So far there is no dispute. But the real conflict rests
on the question whether the Governor can appoint as
E district Judges persons from services other than the judicial
service; that is to say, can he appoint a person who is in
the police, excise, revenue or such other service as a
district Judge? The acceptance of this position would take
us back to the pre-independence days and that too to the
F conditions prevailing in the Princely States. In the Princely
States one used to come across appointments to the
judicial service from police and other departments. This
would also cut across the well-knit scheme of the
Constitution and the principle underlying it, namely, the
G judiciary shall be an independent service. Doubtless if Art.
233(1) stood alone, it may be argued that the Governor
may appoint any person as a district Judg~, whether legally
qualified or not, if he belongs to any service under the
State. But Art. 233(1) is nothing more than a declaration
H of the general power of the Governor in the matter of
DEEPAK AGGARWAL v. KESHAV KAUSHIK 435
[R.M. LODHA, J.]
appointment of district Judges. It does not lay down the A
qualifications of the candidates to be appointed or denote
the sources from which the recruitment has to be made.
But the sources of recruitment are indicated in Cl (2)
thereof. Under Cf. (2) of Art. 233 two sources are given,
namely, (i) persons in the service of the Union or of the B
State, and (ii) advocate or pleader. Can it be said that in
the context of Ch. VI of Part VI of the Constitution "the
service of the Union or of the State" means any service of
the Union or of the State or does it mean the judicial
service of the Union or of the State? The setting, viz., the c
chapter dealing with subordinate Courts, in which the
expression "the service" appears indicates that the service
mentioned therein is the service pertaining to Courts. That
apart, Art. 236(2) defines the expression "judicial service"
to mean a service consisting exclusively of persons
0
intended to fill the post of district Judge and other civil
judicial posts inferior to the post of district Judge. If this
definition, instead of appearing in Art. 236, is placed as a
clause before Art. 233(2), there cannot be any dispute that
"the service" in Art. 233(2) can only mean the judicial
service. The circumstance that the definition of "judicial
E
service" finds a place in a subsequent Article does not
necessarily lead to a contrary conclusion. The fact that in
Article 233(2) the expression "the service" is used whereas
in Arts. 234 and 235 the expression "judicial service" is
found is not decisive of the question whether the F
expression "the service" in Art. 233(2) must be something
other than the judicial service, for, the entire ·chapter is
dealing with tile judicial service. The definition is
exhaustive of the service. Two expressions in the definition
bring out the idea that the judicial service consists of G
hierarchy of judicial officers starting from the lowest and
ending with district Judges. The expressions "exclusively"
and "intended" emphasise the fact that the judicial service
consists only of persons intended to fill up the post of district
Judges and other civil judicial posts and that is the H
436 SUPREME COURT REPORTS [2013] 1 S.C.R.

A exclusive service of judicial officers. Having defined
"judicial service" in exclusive terms, having provided for
appointments to that service and having entrusted the
control of the said service to the care of the High Court,
the makers of the Constitution would not have conferred a
B blanket power on the Governor to appoint any person from
any service as a district Judge.
17. Reliance is placed upon the decision of this Court in
Rameshwar Dayal v. State of Punjab, (AIR 1961 SC 816),
in support of the contention that "the service" in Art. 233(2)
c means any service under the State. The question in that
case was, whether a person whose name was on the roll
of advocates of the East Punjab High Court could be
appointed as a district Judge. In the course of the judgment
S.K. Das, J., speaking for the Court, observed :
D "Article 233 is a self-contained provision regarding
the appointment of District Judges. As to a person
who is already in the service of the Union or of the
State, no special qualifications are laid down and
under Cl. (1) the Governor can appoint such a
E person as a district Judge in consultation with the
relevant High Court. As to a person not already in
service, a qualification is laid down in Cl. (2) and
all that is required is that he should be an advocate
or pleader of seven years' standing."
F
This passage is nothing more than a summary of the
relevant provisions. The question whether "the service" in
Art. 233 (2) is any service of the Union or of the State did
not arise for consideration in that case nor did the Court
express any opinion thereon."
G
Explaining the meaning of the expression, 'the service',
this is what this Court said in paragraph 20 of the Report (Pg.
1995) in Chandra Mohan4.
" ......... Though S. 254(1) of the said Act was couched in
H general terms similar to those contained in Art. 233 (1) of
DEEPAK .AGGARWAL v. KESHAV KAUSHIK 437
[R.M. LODHA, J.]

the Constitution, the said rules did not empower him to A
appoint to the reserved post of district Judge a person
belonging to a service other than the judicial service. Till
India attained independence, the position was that district
Judges were appointed by the Governor from three
sources, namely, (i) the Indian Civil Service, (ii) the B
Provincial Judicial Service, and (iii) the Bar. But after India
attained independence in 1947, recruitment to the Indian
Civil Service was discontinued and the Government of
India decided that the· members of the newly created Indian
Administrative Service would not be given judicial posts. c
Thereafter district Judges have been recruited only from
either the judicial service or from the Bar. There was no
case of a member of the executive having been promoted
as a district Judge. If that was the factual position at the
time the Constitution came into force, it is unreasonable 0
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 method. What
can be more deleterious to the good name of the judiciary
than to permit at the level of district Judges, recruitment . E
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."
44. The Constitution Bench in Chandra Mohan4 has thus F
clearly held that the expression 'the service' in Article 233(2)
means the judicial service.
45. In Satya Narain Singh 5 , this Court again had an
occasion to consider Article 233 of the Constitution. This Court
referred to an earlier decision of this Court in Rameshwar G
Daya/9 and construed Article 233 as follows:
"....... The first clause deals with "appointments of persons
to be, and the posting and promotion of, District Judges
in any State" while the second clause is confined in its
application to persons "not already in the service of the H
438 SUPREME COURT REPORTS [2013] 1 S.C.R.

A Union or of the State". We may mention here that "service
of the Union or of the State" has been interpreted by this
Court to mean Judicial Service. Again while the first clause
makes consultation by the Governor of the State with the
High Court necessary, the second clause requires that the
B High Court must recommend a person for appointment as
a District Judge. It is only in respect of the persons covered
by the second clause that there is a requirement that a
person shall be eligible for appointment as District Judge
if he has been an advocate or a pleader for not less than
c 7 years. In other words, in the case of candidates who are
not members of a Judicial Service they must have been
advocates or pleaders for not less than 7 years and they
have to be recommended by the High Court before they
may be appointed as District Judges, while in the case of
candidates who are members of a Judicial Service the 7
D
years' rule has no application but there has to be
consultation with the High Court. A clear distinction is
made between the two sources of recruitment and the
dichotomy is maintained. The two streams are separate
until they come together by appointment. Obviously the
E same ship cannot sail both the streams
simultaneously ............ .".
After referring to Chandra Moharr4, this Court in paragraph
5 (pg. 230) stated as under :
F "5. Posing the question whether the expression "the service
of the Union or of the State" meant any service of the Union
or of the State or whether it meant the Judicial Service of
the Union or of the State, the learned Chief Justice
emphatically held that the expression "the service" in
G Article 233(2) could only mean the Judicial Service. But
he did not mean by the above statement that persons who
are already in the service, on the recommendation by the
High Court can be appointed as District Judges,
overlooking the claims of all other seniors in the
H
DEEPAK AGGARWAL v. KESHAV KAUSHIK 439
[R.M. LODHA, J.]
Subordinate Judiciary contrary to Article 14 and Article 16 A
of the Constitution."
46. From the above, we have no doubt that the expression,
'the service' in Article 233(2) means the "judicial service". Other
members of the service of Union or State are as it is excluded
because Article 233 contemplates only two sources from which B
the District Judges can be appointed. These sources are: (i)
judicial service; and (ii) the. advocate/pleader or in other words
from the Bar. District Judges can, thus, be appointed from no
source other than judicial service or from amongst advocates.
Article 233(2) excludes appointment of District Judges from the C
judicial service and restricts eligibility of appointment as District
Judges from amongst the advocates or pleaders having
practice of not less than seven years and who have been
recommended by the High Court as such.
47. The question that has been raised before us is whether D
a Public Prosecutor/Assistant Public Prosecutor/District
Attorney/Assistant District Attorney/Deputy Advocate General,
who is in full time employ of the Government, ceases to be an
advocate or pleader within the meaning of Article 233(2) of the
Constitution. E
48. In Kumari Shrilekha Vidyarthi3, this Court dealt with
scheme of the Cr.P.C. relating to Public Prosecutors and it was
held that the Code invests the Public Prosecutors with the
attribute of the holder of public office. In paragraph 14 of the F
Report (Pgs. 232-233) this Court stated as under :
" ........... This power of the Public Prosecutor in charge of
the case is derived from statute and the guiding
consideration for it, must be the interest of administration
of justice. There can be no doubt that this function of the G
Public Prosecutor relates to a public purpose entrusting
him with the responsibility of so acting only in the interest
of administration of justice. In the case of Public
Prosecutors:this additional public element flowing from
statutory provisions in the Code of Criminal Procedure, H
440 SUPREME COURT REPORTS [2013] 1 S.C.R.

A undoubtedly, invest the Public Prosecutors with the
attribute of holder of a public office which cannot be
whittled down by the assertion that their engagement is
purely professional between a client and his lawyer with
no public element attaching to it."
B 49. In State of UP. and Others v. UP. State Law Officers
Association and Others13, this Court, while distinguishing the
judgment of this Court in Kumari Shrilekha Vidyarthi3 ,
observed that appointment of lawyers by the Government and
the public bodies to conduct work on their behalf and their
C subsequent removal from such appointment have to be
examined from three different angles, namely, the nature of the
legal profession, the interest of the public and the modes of the
appointment and removal. With regard to the legal profession,
this Court said in paras 14 and 15 (pg. 216) as under:
D "14. Legal profession is essentially a service-oriented
profession. The ancestor of today's lawyer was no more
than a spokesman who rendered his services to the needy
members of the society by articulating their case before
the authorities that be. The services were rendered without
E regard to the remuneration received or to be received. With
the growth of litigation, lawyering became a full-time
occupation and most of the lawyers came to depend upon
it as the sole source of livelihood. The nature of the service
rendered by the lawyers was private till the Government
F and the public bodies started engaging them to conduct
cases on their behalf. The Government and the public
bodies engaged the services of the lawyers purely on a
contractual basis either for a specified case or for a
specified or an unspecified period. Although the contract
G in some cases prohibited the lawyers from accepting
private briefs, the nature of the contract did not alter from
one of professional engagement to that of employment. The
lawyer of the Government or a public body was not its

H 13. (1994) 2 sec 204.
DEEPAK AGGARWAL v. KESHAV KAUSHIK 441
[R.M. LODHA, J.]
employee but was a professional practitioner engaged to A
do the specified work. This is so even today, though the
lawyers on the full-time rolls of the Government and the
public bodies are described as their law officers. It is
precisely for this reason that in the case of such law
officers, the saving clause of Rule 49 of the Bar Council B
of India Rules waives the prohibition imposed by the said
rule against the acceptance by a lawyer of a full-time
employment.
15. The relationship between the lawyer and his client is
one of trust and confidence. The client engages a lawyer C
for personal reasons and is at liberty to leave him also, for
the same reasons. He is under no obligation to give
reasons for withdrawing his brief from his lawyer. The
lawyer in turn is not an agent of his client but his dignified,
responsible spokesman. He is not bound to tell the court D
every fact or urge every proposition of law which his client
wants him to do, however irrelevant it may be. He is
essentially an adviser to his client and is rightly called a
counsel in some jurisdictions. Once acquainted with the
facts of the case, it is the lawyer's discretion to choose the E
facts and the points of law which he would advance. Being
a responsible officer of the court and an important adjunct
of the administration of justice, the lawyer also owes a dutY
to the court as well as to the opposite side. He has to be
fair to ensure that justice is done. He demeans himself if F
he acts merely as a mouthpiece of his client. This
relationship between the lawyer and the private client is
equally valid between him and the public bodies."
50. In S.B. Shahane and Others v. State of Maharashtra
and another14, this Court held in para 12 (Pg. 43) as under: G
"12. When Assistant Public Prosecutors are appointed
under Section 25 of the Code for conducting prosecutions
in courts of Magistrates in a district fairly and impartially,
14. 1995 Supp (3) sec 37. H
442 SUPREME COURT REPORTS [2013] 1 S.C.R.

A separating them from the police officers of the Police
Department and freeing them from the administrative or
disciplinary control of officers of the Police Department,
are the inevitable consequential actions required to be
taken by the State Government which appoints such
B Assistant Public Prosecutors, inasmuch as, taking of such
actions are statutory obligations impliedly imposed upon
it under sub-section (3) thereof. When such consequential
actions are taken by the State Government in respect of
large number of persons appointed as Assistant Public
c Prosecutors, it becomes necessary for putting them on a
separate cadre of Assistant Public Prosecutors and
creating a separate Prosecution Department as
suggested by the Law Commission in its Report making
those Assistant Public Prosecutors subject to control of
their superiors in the hierarchy in matters ·of administration
D
and discipline, with the head of such Prosecution
Department being made directly responsible to the State
Government in respect of conduct of prosecutions by the
Assistant Public Prosecutors of his department. Since the
aforesaid notification dated 1-4-1974 issued by the
E · Government of Maharashtra under Section 25 of the Code
merely appoints the appellants and others, as mentioned
in Schedule to the notification, the police prosecutors of
the Police Department as Assistant Public Prosecutors
without freeing such Assistant Public Prosecutors from the
F administrative and disciplinary control of the Police
Department to which they belonged earlier, and without
creating a separate department of prosecution for them
with the head of that department or departments being
made directly responsible to the Government, the
G Government of Maharashtra has failed to discharge its
statutory obligation impliedly imposed upon it in that regard
under sub-section (3) of Section 25 of the Code."
51. In Sushma Surf, a three-Judge Bench of this Court
H considered the meaning of the expression "advocate" occurring
DEEPAK AGGARWAL v. KESHAV KAUSHIK 443
[R.M. LODHA, J.]

in Article 233 (2) of the Constitution and unamended Rule 49 A
of the BCI Rules. In paragraph 6 of the Report (Pg. 335) this
Court held as under :
"6. If a person on being enrolled as an advocate ceases
to practise law and takes up an employment, such a person
can by no stretch of imagination be termed as an B
advocate. However, if a person who is on the rolls of any
Bar Council is engaged either by employment or otherwise·
of the Union or the State or any corporate body or person
practises before a court as an advocate for and on behalf
of such Government, corporation or authority or person, the C
question is whether such a person also answers the
description of an advocate under the Act. That is the
precise question arising for our consideration in this case."
Then in paragraph 8 of the Report, this Court observed
that for the purposes of the 1961 Act and the BCI Rules, a law D
officer (Public Prosecutor or Government Pleader) would
continue to be an advocate. Not accepting the view of Delhi
High Court in Oma Shanker Sharma v. Delhi Administration
case (C.W.P. No. 1961 of 1987), this Court having regard to
the object of recruitment under Article 233(2) held in paragraph E
9 (Pg. 336):
"......... To restrict it to advocates who are not engaged in
the manner stated by us earlier in this order is too narrow
a view, for the object of recruitment is to get persons of F
necessary qualification, experience and knowledge of life.
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. G
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 H
444 SUPREME COURT REPORTS [2013] 1 S.C.R.

A 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."
B With regard to unamended Rule 49 of the BCI Rules, this
Court held as under :
"10. 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
c such employment, shall intimate such fact to the Bar
Council concerned and shall cease to practise as long as
he is in such employment. However, an exception is made
in such cases of law officers of the Government and
corporate bodies despite his being a full-time salaried
D 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
E 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
F 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 what such law officer engaged by the Government
does - whether he acts or pleads in court on behalf of
G 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
H the body corporate. Therefore, the Bar Council of India has
"
'

DEEPAK AGGARWAL v. KESHAV KAUSHIK 445
[R.M. LODHA, J.]

understood the expression "advocate" as one who is A
actually practising before courts which expression would
include even those who are law officers appointed as such
by the Government or body corporate."
52. The authority most strongly relied on for the appellants
is the decision of this Court in Sushma Surf. Their contention B
is that the decision in Sushma Suri6 is on all fours irrespective
of amendment in Rule 49 of the BCI Rules. On the other hand,
the High Court has held - and the respondent (successful writ
petitioner) supports the view of the High Court - that Rule 49
in the present form has altered the legal position and Sushma C
Suri6 has no application. We shall deal with this aspect a little
later.
53. In Salish Kumar Sharma7 , the facts were these : the
appellant was initially appointed as Assistant (Legal) by the
0
Himachal Pradesh State Electricity Board (for short, 'Board');
the said post was re-designated as Law Officer Grade-II. Later
on, the appellant was allowed to act as an advocate of the
Board and, accordingly, his application seeking enrollment was
sent by the Board to the Bar Council of Himachal Pradesh. The
Bar Council of Himachal Pradesh communicated to the Board E
that the appellant did not meet the requirements of the Rules;
he should be first designated as Law Officer and the order of
appointment and the terms of such appointment be
communicated. Consequent on the communication received
from the Bar Council of Himachal Pradesh, the Board F
designated the appellant as Law Officer.· The Bar Council of
Himachal Pradesh issued a certificate of enrolment dated
9.7.1984 to the appellant. Subsequently, the appellant was given
ad hoc promotion to the post of Under Secretary; (Legal)-cum-
Law Officer and then promoted as Under Secretary, (Legal)- G
cum-Law Officer on officiating basis. Bar Council of Himachal
Pradesh issued a notice to the appellant to show cause why
his enrolment be not withdrawn. The appellant responded to the
said notice. In the meanwhile, appellant was also promoted as
Deputy Secretary (Legal)-cum-Law Officer on ad hoc basis. On H
446 SUPREME COURT REPORTS [2013] 1 S.C.R.

A 12.5.1996, the Bar Council of Himachal Pradesh passed an
order withdrawing the enrolment of the appellant with immediate
effect and directed him to surrender the enrolment certificate
within 15 days therefrom. It was this resolution which was
challenged by the appellant before the Himachal Pradesh High
B Court. However, he was unsuccessful before the High Court
and he approached this Court. This Court referred to Sections
24, 28 and 49 of the 1961 Act and Rule 49 of the BCI Rules.
This Court also considered the terms of appointment, nature
of duties and service conditions relating to the appellant and
c in paragraph 17 (Pg. 377) of the Report noted as follows :
"17. Looking to the various appointment/promotion orders
issued by the Board to the appellant and regulation of
business relating to Legal Cell of the Board
aforementioned, we can gather that:
D (1) the appellant was a full-time salaried employee at the
time of his enrolment as an advocate and continues to be
so, getting fixed scales of pay;
(2) he is governed by the conditions of service applicable
E to the employees of the Board including disciplinary
proceedings. When asked by us, the learned counsel for
the appellant also confirmed the same;
(3) he joined the services of the Board as a temporary
Assistant (Legal) and continues to head the Legal Cell
F after promotions, a wing in the Secretaricit of the Board;
(4) his duties were/are not exclusively or mostly to act or
plead in courts; and
(5) promotions were given from time to time in higher pay
G scales as is done in case of other employees of the Board
on the basis of recommendation of Departmental
Promotion Committee."
53.1. Then with regard to Rule 49 of the BCI Rules, this
Court in paragraph 18 (pgs. 377-378) observed as under:
H
DEEPAK AGGARWAL v. KESHAV KAUSHIK 447
[R.M. LODHA, J.]
"18. On a proper and careful analysis, having regard to the A
plain language and clear terms of Rule 49 extracted above,
it is clear that:
(1) 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 B
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_h_e ·
contiJlues in such employment; C
(i1) 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 D
given entitlement under the rules of their State Bar Council.
To put it in other way, this provision is an enabling provision.
If in the rules of any State Bar Council, a provision is made
entitling Law Officers of the Government or authorities
mentioned above, the bar contained in Rule 49 shall not E
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 F
in courts on behalf of his employer can avail the benefit of
the exception contained in para 2 of Rule 49."
53.2. In paragraph 19, this Court noted that no rules have
been framed by the Bar Council of Himachal Pradesh in respect G
of Law Officer appointed as a full time salaried employee and
if there are no rules in this regard then there is no entitlement
for enrolment and the appellant's case could not fit in the
exception of Rule 49 and the bar contained in the first
paragraph of Rule 49 was attracted. It also noted that the
H
448 SUPREME COURT REPORTS [2013] 1 S.C.R.

A appellant was/is a full time salaried employee and his work was
not mainly or exclusively to act or plead in the Court. The
decision in Sushma Surf' was held to be of no help to the case
of the appellant. In paragraph 23 (Pgs. 380-381 ), the Court
observed that the work being done by the appellant was
8 different from Prosecutors and Government Pleaders in relation
to acting and pleading in court. This is what the Court said :

"23. We find no merit in the ground urged that the appellant
. was discriminated against the prosecutors and the
c government pleaders. The duties, nature of work and
service conditions of the appellant, details of which are
already given above, are substantially different from the
duties and nature of work of prosecutors and government
pleaders particularly in relation to acting and pleading in·
o court. Thus the appellant stood on a different footing. The
High Court in paras 24-26 has dealt with this aspect of the
case and rightly rejected the argument based on the
ground of discrimination."
54. In State of U.P. & Another v. Johri Mar 5 , a three-Judge
E Bench of this Court while dealing with the nature of the office
of the District Government Counsel, held in paras 71, 72, 73
and 74 (pgs.744-745) as under:
"71. The District Government Counsel appointed for
conducting civil as also criminal cases hold offices of great
F importance. They are not only officers of the court but also
the representatives of the State. The court reposes a great
deal of confidence in them. Their opinion in a matter
carries great weight. They are supposed to render
independent, fearless and non-partisan views before the
G court irrespective of the result of litigation which may
ensue.
72. The Public Prosecutors have greater responsibility.
They are required to perform statutory duties independently
H 1s. (2004) 4 sec 714.
~DEEPAK AGGARWAL v. KESHAV KAUSHIK 449
[R.M. LODHA, J.]
having regard to various provisions contained in the Code A
of Criminal Procedure and in particular Section 320
thereof.
73. The Public Prosecutors and the Government Counsel
play an important role in administration of justice. Efforts
are required to be made to improve the management of .B
prosecution in order to increase the certainty of conviction
and punishment for most serious offenders and repeaters.
The prosecutors should not be overburdened with too
many cases of widely varying degrees of seriousness with
too few assistants and inadequate financial resources. The C
prosecutors are required to play a significant role in the
administration of justice by prosecuting only those who
should be prosecuted and releasing or directing the use
of non-punitive methods of treatment of those whose cases
would best be processed. D
74. The District Government Counsel represent the State.
They, thus, represent the interest of the general public
before a court of law. The Public Prosecutors while
presenting the prosecution case have a duty to see that
innocent persons may not be convicted as well as an E
accused guilty of commission of crime does not go
unpunished. Maintenance of law and order in the society
and, thus, to some extent maintenance of rule of law which
is the basic fibre for upholding the rule of democracy lies
in their hands. The Government Counsel, thus, must have F
character, competence, sufficient experience as also
standing at the Bar. The need for employing meritorious
and competent persons to keep the standard of the high
offices cannot be minimised. The holders of the post have
a public duty to perform. Public element is, thus, involved G
therein." ·
55. In Mahesh Chandra Gupta v. Union of India and
Others16, with reference to the provisions contained in the Legal
1a. (2009) a sec 273. H
450 SUPREME COURT REPORTS [2013] 1 S.C.R.

A Practitioners Act, 1879, the 1926 Act and the 1961 Act, this
Court observed as follows:
"66. Thus, it becomes clear from the legal history of the
1879 Act, the 1926 Act and the 1961 Act that they all deal
with a person's right to practise or entitlement to practise.
B The 1961 Act only seeks to create a common Bar
consisting of one class of members, namely, advocates.
Therefore, in our view, the said expression "an advocate
of a High Court" as understood, both, pre and post 1961,
referred to person(s) right to practise. Therefore, actual
c practise cannot be read into the qualification provision,
namely, Article 217(2)(b). The legal implication of the 1961
Act is that any person whose name is enrolled on the State
Bar Council would be regarded as "an advocate of the
High Court". The substance of Article 217(2)(b) is that it
D prescribes an eligibility criteria based on "right to practise"
and not actual practice."
56. The Karnataka High Court in Ma/laraddi H. ltagi and
Others v. The High Court of Karnataka, Bangalore and
Another17 was, inter alia, concerned with the question whether
E the petitioners, who were working as either Assistant Public
Prosecutors or Senior Assistant Public Prosecutors or Public
Prosecutors, were eligible to be considered for appointment
as District Judges under Article 233(2) of the Constitution and
Rule 2 of Karnataka Judicial Services (Recruitment) Rules,
F 1983 (for short, 'Karnataka Recruitment Rules'). The Division
Bench of the High Court considered the relevant provisions and
the decisions of this Court in Sushma Suri6 and Satya Narain
Singh 5 • The High Court held that having regard to the provisions
in the Karnataka Recruitment Rules, the petitioners were civil
G servants in the employment of the State Government and could
not be treated as practicing advocates from the date they were
appointed to the post of Assistant Public Prosecutors. The High
Court took into consideration Rule 49 of the BCI Rules and held
as under (Pg. 86-88):
H 17. 2002 (4) Karnataka Law Journal 76.
DEEPAK AGGARWAL v. KESHAV KAUSHIK 451
[R.M. LODHA, J.]

'The petitioners 1 to 9 came to be appointed as Assistant A
Public Prosecutors/Senior Assistant Public Prosecutors/
Pubiic Prosecutors in terms of the Recruitment Rules
framed by the State Government. Therefore, in terms of the
main provision contained in Rule 49 of the Bar Council of
India Rules, the petitioners on their appointment as B
Assistant Public Prosecutors ceased to be practising
Advocates. Further, as noticed by us earlier, when once
the petitioners had surrendered their Certificate of Practice
and suspended their practice in terms of Rule 5 of the Bar
Council of India Rules, it is not possible to take the view C
that they still continue to be practising Advocates. The
rules which prescribe the qualification for appointment to
the post of District Judges by direct recruitment provides
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 7 years as on such D
date. The case of Sushma Suri, supra, does not deal with
the situation where the Law Officers had surrendered the
Certificate of Practice and suspended their practice. The
facts of that case indicates that the Hon'ble Supreme Court
proceeded on the basis that the exception provided to E
Rule 49 of the Rules applies to the Law Officers in that
case inasmuch as the Law Officers in those cases were
designated by terms of their appointment as Law Officers
for the purpose of appearing before the Courts on behalf
of their employers. Therefore, facts of those cases are F
different from the facts of the case of petitioners 1 to 9.
The rule similar to the one before us which provides that
an Advocate must be a practising Advocate on the date
of the submission of the application did not fall for
consideration before the Hon'ble Supreme Court. The G
Delhi Higher Judicial Services Rules, 1970 did not provide
that an Advocate should be a practising Advocate on the
date of submission of his application. Under these
circumstances, in our considered view, the observation
made by the Hon'ble Supreme Court in the case of H
452 SUPREME COURT REPORTS [2013] 1 S.C.R.

A Sushma Suri, supra, at paragraph 8 of the judgment which
is strongly relied upon by the learned Counsel for the
petitioners wherein it is stated that "for purposes of the
Advocates Act and the Rules framed thereunder the Law
Officer (Public Prosecutor or Government Counsel) will
B continue to be an Advocate. The intention of the relevant
rules is that a candidate eligible for appointment to the
higher judicial service should be a person who regularly,
practices before the Court or Tribunal appearing for a
client" has no application to the facts of the present case.
As noticed by us, the qualification prescribed for Assistant
c Public Prosecutor is three years of practice as an
Advocate on the date of submission of application. The
qualification prescribed for recruitment to the post of
Munsiff, i.e., Civil Judge (Junior Division) is that an
applicant, on the last date fixed for submission of
D •
application, must be a practising Advocate·and must have
practiced for not less than four years on the date of .
application; or who is working as an Assistant Public
Prosecutor/Senior Assistant Public Prosecutor or as a
Public Prosecutor in the Department of Prosecutions and
E must have so worked for not less than 4 years as on the
date of application. Therefore, the Assistant Public
Prosecutors/Senior Assistant Public Prosecutor/Assistant
Public Prosecutor are made eligible for appointment only
to the post of Munsiffs Civil Judge (Junior Division) under
F the Recruitment Rules. But, they are not made eligible
under the Rules for appointment as District Judges.
Therefore, when the Rule making Authority itself has not
made the Assistant Public Prosecutor/Senior Assistant
Public Prosecutor/Public Prosecutor as eligible for
G appointment to the post of District Judges, it is not
permissible to treat the Assistant Public Prosecutor/Senior
Assistant Public Prosecutor/Public Prosecutor as
practising Advocates by judicial interpretation and by
giving extended meaning to make them eligible for
H appointment to the post of District Judg&S." ~
DEEPAK AGGARWAL v. KESHAV KAUSHIK 453
[R.M. LODHA, J.]
With reference to the decision of this Court in Satya Narain A
Singh 5 , the Karnataka High Court held as under (Pg. 88-89) : 1

"The Hon'ble Supreme Court in the case of Satya Narain
Singh v. High Court of Judicature at Allahabad and Ors.,
1985 (1) SCC 225, while interpreting Sub-clause (2) of
Article 233 of the Constitution of India has taken the view 8
that "a person not already in service of Union or of the
State" shall mean only officers in judicial service and the
Judicial Officers who are already in service are not eligible
for appointment in respect of the post reserved for direct
recruitment under Sub-clause (2) of Article 233 of the C
C_onstitution of India. Therefore, the Judicial Officers who
are in the State services are ineligible for appointment in
respect of direct recruitment vacancies. However, if the
argument of the learned Counsel for petitioners is
accepted as correct, the Assistant Public Prosecutor and D
Senior Assistant Public Prosecutor who are only made
eligible under the Recruitment Rules to the post of Munsiffs
which is the lowest cadre in the District Judiciary would be
eligible for appointment to the post of District Judges in
respect of the posts reserved for direct recruitment E
vacancies. In our view, the acceptance of such a position
would lead to discrimination between the officers of the
State who are in judicial serviqes on the one hand and
Assistant Public Prosecutors, Senior Assistant Public
Prosecutors and Public Prosecutors on the other. While F
considering the contention of the learned Counsel for the
petitioners that the Assistant Public Prosecutor/Senior
Assistant Public Prosecutor/Public Prosecutors should be
treated as practising Advocates, this Court cannot ignore
the consequence of resultant incongruous situation, if such G
.an argument is accepted. We are also unable to accede
to the submission of the learned Counsel for the petitioners
that so long as the names of the petitioners 1 to 9 are not
removed from the Rolls of State Bar Council, the said
petitioners would be practising Advocates. In our view, H
454 SUPREME COURT REPORTS [2013] 1 S.C.R.

A there is no merit in this submission. No doubt, Section 2(a)
of the Advocates Act (hereinafter referred to as the "Act")
provides that "an 'Advocate' means an Advocate entered
in any roll under the provisions of Advocates Act". That
does not mean the Advocate who has surrendered the
B Certificate of Practice to the State Bar Council and who
has suspended his practice also can be treated either as
an Advocate or as a practising Advocate. May be that
once a Law graduate enrolls himself as an Advocate, his
name finds a place in the Rolls of the State Bar Council
c till it is removed from the Rolls of the State Bar Council in
terms of Clause (d) of Sub-section (3) of Section 35 of the
Act. But, that does not mean a person who has suspended
his practice on securing a full time appointment can still
be considered as a practising Advocate. This conclusion
of ours gets support from the Sub-section (4) of Section
D
35 of the Act wherein it is provided that where an Advocate
is suspended from practice, during the period of
suspension he is debarred from practising in any Court or
before any authority or person in India. Therefore, if the
object of surrendering Certificate of Practice and
E
suspending the practice is to give up the right to practice
before the Court; the petitioners 1 to 9 who were required
to surrender the Certificate of Practice and who have so
suspended their practice, cannot in our view, be held either
as Advocates or as practising Advocates. In our view,
F during the period of suspension of practice, such a person
ceases to be an Advocate; and continuance of his name
on the Rolls of Bar Council is of no consequence so far
as his right to practice is concerned and such a person
cannot designate himself as an Advocate. Therefore, we
G are of the view that the petitioners 1 to 9 not being
practising Advocates on the date of submission of their
applications, they are not eligible for appointment as
District Judges in terms of the qualification prescribed.
Therefore, the Selection Committee has, in our view, rightly
H rejected the claim of the petitioners 1 to 9 for appointment
DEEPAK AGGARWAL v. KESHAV KAUSHIK 455
[R.M. LODHA, J.]
as District Judges and they were rightly not called for A
interview. The petitioners cannot have any grievance on
that account."
57. The judgment of the Karnataka High Court in
Mal/araddi H. Jtagt1 7 was challenged before this Court. This
Court dismissed the appeals on 18.05.200918 and, upholding B
the judgment of the High Court, observed as follows:
"7. On that basis the Court came to the conclusion that the
appellant therein was not liable to be considered as he
was holding a regular post. In paragraph 19 it was C
observed:
"These orders clearly show that the appellant was
required to work in the Legal Cell of the Secretariat
of the Board; was given different pay scales; rules
of seniority were applicable; promotions were D
given to him on the basis of the recommendations
of the Departmen_tal Promotion Committee; was
amenable to disciplinary proceedings, etc.
Further looking to the nature of duties of Legal Cell
as stated in the regulation of business of the Board E
extracted above, the appellant being a fuli-time salaried
employee had/has to attend to so many duties which
appear to be substantial and predominant. In short and
substance we find that the appellant was/is a full-time
salaried employee and his work was not mainly or F
exclusively to act or plead in court.
Further, there may be various challenges in courts
of law assailing or relating to the decisions/actions taken
by the appellant himself such as challenge to issue of
statutory regulation, notification, the institution/ withdrawal G
of any prosecution or other legal/quasi-legal proceedings
etc. In a given situation the appellant may be amenable to

18. Civil Appeal Nos. 947-956 of 2003, Mallaraddi H. ltagi and ors. v. High Court
of Kamataka and Ors. H
456 SUPREME COURT REPORTS [2013) 1 S.C.R.

A disciplinary jurisdiction of his employer and/or to the
disciplinary jurisdiction of the Bar Council. There could be
conflict of duties and interest. In such an event, the
appellant would be in an embarrassing position to plead
and conduct a case in a court of law.
B Moreover, mere occasional appearances in some courts
on behalf of the Board even if they be, in our opinion, could
not bring the appellant with the meaning of "Law Officer''
in terms of para 3 of Rule 49."
and has also taken a view that in a situation like this the
c decision in Sushma Suri case is not applicable. We have
no reason to take any different view, as had already been
taken by this court, as the ~ituation is not different. It is
already considered before the High Court that the
appellants were holding a regular post they were having
D
the regular pay scale, they were considered for promotion,
they were employed by the State Government Rules and
therefore they were actually the Government servants when
they made applications for the posts of District Judges."

E 58. The decision of the Karnataka High Court in Mallaraddi
H. ltag/1 7 and the judgment of this Court18 in the appeals from
that decision have been heavily relied on by the respondent -
successful writ petitioner.
59. Few decisions rendered by some of the High Courts
F on the point may also be noticed here. In Sudhakar Govindrao
Deshpande11 , the issue that fell for consideration before the
Bombay High Court was whether the petitioner therein who was
serving as Deputy Registrar at the Nagpur Bench of the
Bombay High Court, was eligible for appointment to the post
G of the District Judge. The advertisement that was issued by the
High Court inviting applications for five posts of District Judges,
inter alia, stated, 'candidate must ordinarily be an advocate or
pleader who has practised in the High Court, Bombay or Court
subordinate thereto for not less than seven years on the 1st
H October, 1980'. The Single Judge of the Bombay High Court
DEEPAK AGGARWAL v. KESHAV KAUSHIK 457
[R.M. LODHA, J.]
considered Articles 233, 234 and 309 of the Constitution, A
relevant Recruitment Rules and noted the judgments of this
Court in Chandra Mohan 4 , Satya Narain Singh 5 and
Rameshwar Daya/9. It was observed as follows:
" ........ the phrase "has been an Advocate or a pleader"
must be interpreted as a person who has been B
immediately prior to his appointment a member of the Bar,
that is to say either an Advocate or a pleader. In fact, in
the above judgment, the Supreme Court has repeatedly
referred to the second group of persons eligible for
appointment under Article 233 (2) as "members of the C
Bar". Article 233(2) therefore, when it refers to a person
who has been for not less than seven years an Advocate
or pleader refers to a member of the Bar who is of not less
than seven years' standing."
D
60. In Smt. Jyoti Gupta v. Registrar General, High Court
of M.P., Jabalpur and Another19, Madhya Pradesh High Court
was concerned with the question as to whether the Assistant
Public Prosecutors were eligible to apply for appointment to the
post of District Judges. The Madhya Pradesh High Court held
as under: E
1
' . . • . . . A careful reading of the note provided in the
exception states that nothing in Rule 49 of the Bar Council
of India Rules shall apply to a Law Officer of the Central
Government, State Government or a body corporate who F
is entitled to be enrolled under the rules of the State Bar
Council under Section 28(2)(d) read with Section 24(1)(e)
of the Advocates Act, 1961 despite his being a full-time
salaried employee. Hence, the exception to Rule 49 has
been provided because of the provisions in the Rules of G
State Bar Council made under Section 28(2)(d) read with
Section 24(1)(e) of the Advocates Act, 1961 for a Law
Officer of the Central Government or the State Government
or a body corporate to be admitted into the roll of the State

19. 2008 (2) MPLJ 486. H
458 SUPREME COURT REPORTS [2013] 1 S.C.R.

A Bar Council if he is required by the terms of his
appointment to act and/or plead in Courts on behalf of his
employer. In other words, if the rules made by the State
Bar Council under Section 28(2)(d) read with Section
24(1)(e) of the Advocates Act, 1961 provide for admission
B as an Advocate, enrolment in the State Bar Council as an
Advocate or a Law Officer of the Central Government or
the State Government or a body corporate, who, by the
terms of his employment, is required to act and/or plead
in Courts on behalf of his employer, he can be admitted
c as an Advocate and enrolled in the State Bar Council by
virtue of the provisions of Sections 24(1)(e) and 28(2)(d)
of the Advocates Act, 1961 and the rules made thereunder
by the State Bar Council and he does not cease to be an
Advocate on his becoming such Law Officer of the Central
Government, State Government or a body corporate. As
D
we have seen, the State Bar Council of M.P. has provided
under Proviso(i) of Rule 143 that a Law Officer of the
Central Government or a Government of State or a public
corporation or a body constituted by a statute, who by the
terms of his appointment, is required to act and/or plead
E in Courts on behalf of his employer, is qualified to be
admitted as an Advocate even though he may be in fJ.Jll or
part-time service or employment of such Central
Government, State Government, public corporation or a
body corporate. The position of law, therefore, has not
F materially altered after the deletion of the note contained
in the exception under Rule 49 of the Bar Council of India
Rules by the resolution of the Bar council of India, dated
22nd June, 2001.

G

In the result, we hold that if a person has been enrolled as
H an Advocate under the Advocates Act, 1961 and has
DEEPAK AGGARWAL v., KESHAV KAUSHIK 459
[R.M. LODHA, J.]
thereafter been appointed as Public Prosecutor/Assistant A
Public Prosecutor or Assistant District Public Prosecutor
and by the terms of his appointment continues to conduct
cases on behalf of the State Government before the
Criminal Courts, he does not cease to be an Advocate
within the meaning of Article 233(2) of the Constitution and B
Rule 7(1)(c) of M.P. Uchchatar Nyayik Sewa (Bharti Tatha
Sewa Shartein) Niyam, 1994 for the purpose of
recruitment to the post of District Judge (Entry Level) in the
M.P. Higher Judicial Service."
61. In K. Appadurai v. The Secretary to Government of C
Tamil Nadu and Another20 , one of the questions under
consideration before the Madras High Court was whether for
appointment to the post of District Judge (Entry Level), the
applications could have been invited from the Assistant Public
Prosecutor (Grade I & II). The Division Bench of that Court D
referred to Article 233 of the Constitution, Rule 49 of the BCI
Rules and the decisions of this Court in Satya Narain Singh 5 ,
Chandra Mohan4, Sushma Suri6 , Johri Ma/1 5 and Satish
Kumar Sharma7 • The Division Bench held as under:
"22. In the light of the ratio laid down by the Supreme Court E
in the decisions quoted hereinbefore, it can safely be
concluded that the nature of duties of the Assistant Public
Prosecutors is to act and plead in Courts of Law on behalf
of the State as Advocates. Even after becoming Assistant
Public Prosecutors they continue to practice as advocates F
and plead the cases on behalf of the Government and their
names remained in the roll of advocates maintained by the
Bar Council. As Public Prosecutors they acquired much
experience in dealing criminal cases.
23. It was argued on behalf of the petitioners that the note G
appended to Rule 49 of the Bar Council of India ~ules
having been deleted by a resolution dated 22nd June,
2001 of the Bar Council of India, the ratio decided by the

20. 2010-4-L.W. 454. H
460 SUPREME COURT REPORTS [2013] 1 S.C.R.

A Supreme Court in Sushma Suri Case (supra) will not
apply, and therefore, an advocate who is employed as a
full time salaried employee of the government, ceases to
practice as an advocate so long as he continues in such
employment. The submission made by the counsel has no
B substance.
24. As noticed above, Rule 49 of the Bar Council of India
Rules provides an exception where in case of Law Officers
of the government and corporate bodies, despite they
being employed by the government as Law Officers, they
c cannot cease to be advocates so long as they are required
to plead in the courts. For example, Assistant Public
Prosecutors so appointed by the government on payment
of salary their only nature of work is to act, plead and
defend on behalf of the State as an advocate. Hence, an
D advocate employed by the government as Law Officer
namely, an Assistant Public Prosecutor on terms of
payment of salary would not cease to be an advocate in
terms of Rule 49 of the Bar Council of India Rules for the
purpose of appointment, as such advocate is required to
E act or plead in courts on behalf of the State. If, in terms of
the appointment, an advocate is made a Law Officer on
payment of salary to discharge his duties at the Secretariat
and handle the legal files, he ceased to be an advocate.
In our considered opinion, therefore, the deletion of the
F note appended to under Rule 49 of the Bar Council of India
Rules will not in any way affect the legal proposition of law.
We are also of the view that in the light of the relevant
clauses of the Advocates Act, 1961 it will not debar the
Assistant Public Prosecutors to continue and plead in
courts as an advocate."
G
62. In Biju Babu10 , the question before the Kerala High
Court was whether the appellant, who was a Public Prosecutor
appointed by the Central Government to conduct cases for the
C.8.1., was eligible for appointment to the post of District Judge
H in the Kerala State Higher Judicial Service by direct recruitment.
DEEPAK AGGARWAL v. KESHAV KAUSHIK 461
[R.M. LODHA, J.]

The High Court answered the question in the negative mainly A
relying on amended Rule 49 of the SCI Rules and the legal
position stated by this Court in Salish Kumar Sharma 7•
63. Two more judgments of this Court may be quickly
noticed here. In State of U.P. v. Ramesh Chandra Sharma and
others21, this Court stated that the appointment of any legal B
practitioner as a District Government Counsel is only
professional engagement. A two-Judge Bench of this Court in
Samarendra Das, Advocate v. State of West Bengal and
others2 2 was concerned with the question whether the post of
Assistant Public Prosecutor was a civil post under the State of C
West Bengal in terms of Section 15 of the Administrative
Tribunals Act 1985. While answering the above question in the
affirmative, this Court held that the post of Assistant Public
Prosecutor was a civil post. The Court negated the argument
that the Assistant Public Prosecutor was an officer of the Court D
of Judicial Magistrate.
64. After the arguments were concluded in these matters
and the judgment was reserved, Respondent No. 1 (original writ
petitioner) has circulated a judgment of the Bombay High Court
in Sunanda Bhimrao Chaware & Ors. v. The High Court of E
Judicature at Bombay, delivered on 17.10.2012 by the Full
Bench of that Court. We are not inclined to consider this
judgment for two reasons. One, the appellants had no occasion
to respond to or explain that judgment. Secondly, and equally
important, the aggrieved parties by that judgment, who are not F
before us, may be advised to challenge the judgment. We do
not intend to foreclose the rights of the parties one way or the
other.
65. Section 24 Cr.P.C. provides that for every High Court
the Central Government or the State Government shall appoint G
a Public Prosecutor. The Central Government or the State
Government may also appoint one or more Additional Public
Prosecutor for conducting in such court, any prosecution, appeal
21. (1995) 6 sec 527.
H
22. (2004) 2 sec 274.
462 SUPREME COURT REPORTS [2013] 1 S.C.R.

A or other proceedings on their behalf The Central Government
may appoint one or more Public Prosecutors for the purpose
of conducting any case or class of cases in any district or local
area. Insofar as State Government is concerned it provides that
for every district it shall appoint a Public Prosecutor and may
s also appoint one or more Additional Public Prosecutors for the
district. There are two modes of appointment of the Public
Prosecutors, one, preparation of a panel of names of persons,
who in the opinion of the District Magistrate after consultation
with the Sessions Judge, are fit to be appointed as Public
c Prosecutors or Additional Public Prosecutors for the district.
The other, appointment of Public Prosecutor or an Additional
Public Prosecutor from amongst the persons in a State where
exists regular cadre of prosecuting officers. A person is eligible
to be appointed as Public Prosecutor only if he has been in
practise as an advocate for not less than seven years. Special
0
Public Prosecutor may also be appointed by the Central or the
State Government for the purpose of any case or class of cases
but he has to be a person who has been in practise as an
advocate for not less than 10 years.
E 66. Public Prosecutor has a very important role to play in
the administration of justice and, particularly, in criminal justice
system. Way back on April 15, 1935 in Harry Berger v. United
States of America 23 , Mr. Justice Sutherland, who delivered the
opinion of the Supreme Court of United States, said about the
F United States Attorney that he is the representative not of an
ordinary party to a controversy, but of a sovereignty whose
obligation to govern impartially is as compelling as its obligation
to govern at all, and whose interest, therefore, in a criminal
prosecution is not that it shall win a case, but that justice shall
G be done. The twofold aim of United States Attorney is that guilt
shall not escape or innocence suffer. It is as much his duty to
refrain from improper methods calculated to produce wrongful
conviction as it is to use every legitimate means to bring about
a just one.
H 23. 295 U.S. 78.
DEEPAK AGGARWAL v. KESHAV KAUSHIK 463
[R.M. LODHA, J.]
67. The Eighth United Nations Congress on the Prevention A
of Crime and the Treatment of Offenders, adopted guidelines
on the role of Prosecutors in 1990. lnter-alia, it states that
Prosecutors shall perform their duties fairly, consistently and
expeditiously and respect and protect human dignity and uphold
human rights. He shall take proper account of the position of B
the suspect and the victim and pay attention to all relevant
circumstances, irrespective of whether they are to the
advantage or disadvantage of the suspect.

68. As a follow up action to the above guidelines on the
role of Prosecutors, the International Association of Prosecutors C
adopted Standards of Professional Responsibility and
Statement of the Essential Duties and Rights of Prosecutors
which, inter-alia, provides that Prosecutors shall strive to be,
and to be seen to be, consistent, independent and impartial;
Prosecutors shall preserve the requirements of a fair trial and D
safeguard the rights of the accused in co-operation with the
Court.

69. European Guidelines on Ethics and Conduct for Public
Prosecutors [The Budapest Guidelines] adopted in the E
Conference of Prosecutors General of Europe on 31st May,
2005 are on the same !ines as above. Under the head
"professional conduct in the framework of criminal proceedings".
These guidelines state that when acting within the framework
of criminal proceedings, Public Prosecutor should at all times F
carry out their functions fairly, impartially, objectively and, within
the framework of the provisions laid down by law, ~ndependently;
seek to ensure that the criminal justice system operates as
expeditiously as possible, being consistent with the interests
of justice; respect the principle of the presumption of innocence G
and have regard to all relevant circumstances of a case
including those affecting the suspect irrespective of whether
they are to the latter's advantage or disadvantage.

70. In India, role of Public Prosecutor is no different. He
has at all times to ensure that an accused is tried fairly. He H
464 SUPREME COURT REPORTS [2013] 1 S.C.R.

A should consider the views, legitimate interests and possible
concern of witnesses and victims. He is supposed to refuse to
use evidence reasonably believed to have been obtained
through recourse to unlawful methods. His acts should always
serve and protect the public interest. The State being a
B Prosecutor, the Public Prosecutor carries a primary position.
He is not a mouthpiece of the investigating agency. In Chapter
II of the BCI Rules, it is stated that an advocate appearing for
the prosecution of a criminal trial shall so conduct the
prosecution that it does not lead to conviction of the innocent;
C he should scrupulously avoid suppression of material capable
of establishing the innocence of the accused.
71. A two Judge Bench of this Court in Mukul Dalaf2, while
dealing with a question about the justifiability of the appointment
by the State of Special Public Prosecutors and Assistant Public
D Prosecutors under Sections 24 and 25 Cr.P.C. respectively,
observed that in criminal jurisprudence the State was a
prosecutor and that is why primary position is assigned to the
Public Prosecutor.
72. In Sidhartha Vashisht alias Manu Sharma v. State
E (NCT of Delhi) 24 , the Court considered role of Public
Prosecutor vis-a-vis his duty of disclosure. The Court noted
earlier decisions of this Court in Shiv Kumar v. Hukam Chand
and Anothei'-5 and Hitendra Vishnu Thakur and Others v. State
of Maharashtra and others2 6 and in paragraphs 185 and 186
F (Pgs. 73-74) of the Report stated as under:
"185. A Public Prosecutor is appointed under Section 24
of the Code of Criminal Procedure. Thus, Public
Prosecutor is a statutory office of high regard. This Court
has observed the role of a Prosecutor in Shiv Kumar v.
G
Hukam Chand [(1999) 7 SCC 467] as follows: (SCC p.
472, para 13) ·
24. (2010) 6 sec 1.
25. (1999) 7 sec 467.
H 26. (1994) 4 sec 602.
DEEPAK AGGARWAL v. KESHAV KAUSHIK 465
[R.M. LODHA, J.]
"13. From the scheme of the Code the legislative intention A
is manifestly clear that prosecution in a Sessions Court
cc:.:-rnot be conducted by anyone other than the Public
Prosecutor. The legislature reminds the State that the
policy must strictly conform to fairness in the trial of an
accused in a Sessions Court. A Public Prosecutor is not B
expected to show a thirst to reach the case in the conviction
of the accused somehow or the other irrespective of the
true facts involved in the case. The expected attitude of the
Public Prosecutor while conducting prosecution must be
couched in fairness not only to the court and to the c
investigating agencies but to the accused as well. If an
accused is entitled to any legitimate benefit during trial the
Public Prosecutor should not scuttle/conceal it. On the
contrary, it is the duty of the Public Prosecutor to winch it
to the force and make it available to the accused. Even if
0
the defence counsel overlooked it, the Public Prosecutor
has the added responsibility to bring It to the notice of the
court if it comes to his knowledge. A private counsel, if
allowed a free hand to conduct prosecution would focus
on bringing the case to conviction even if it is not a fit case E
to be so convicted. That is the reason why Parliament
applied a bridle on him and subjected his role strictly to
the instructions given by the Public Prosecutor.

186. This Court has also held that the Prosecutor does not
represent the investigating agencies, but the State. This F
Court in Hitendra Vishnu Thakur v. State of Maharashtra
[(1994) 4 SCC 602] held: (SCC pp. 630-31, para 23)

"23 . ... A Public Prosecutor is an important officer of the
State Government and is appointed by the State under the G
· Criminal Procedure Code. He is not a part of the
investigating agency. He is an independent statutory
authority. The public prosecutor is expected to
independently apply his mind to the request of the
H
466 SUPREME COURT REPORTS [2013) 1 S.C.R.

A investigating agency before submitting a report to the court
for extension of time with a view to enable the investigating
agency to complete the investigation. He is not merely a
post office or a forwarding agency. A Public Prosecutor
may or may not agree with the reasons given by the
B investigating officer for seeking extension of time and may
find that the investigation had not progressed in the proper
manner or that there has been unnecessary, deliberate or
avoidable delay in completing the investigation."

C Then in paragraph 187 (Pg. 74) the Court stated as
follows:

"187. Therefore, 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
D 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."
E
73. In a recent decision in Centre for Public Interest
Litigation and Others v. Union of India and Others 27, the
question before this Court was in respect of the appointment
of a Special Public Prosecutor to conduct the prosecution on
F behalf of CBI and ED in 2G Spectrum case. While dealing with
the above question, the Court considered Section 2(u) and
Section 24 Cr.P.C. and Section 46 of the Prevention of Money-
Laundering Act, 2002 and few earlier decisions of this Court
in Manu Sharma24 , Sheonandan Paswan v. State of Bihar and
G Others 28 and Johri Mal 15 and it was observed that in an
appointment of Public Prosecutor, the principle of maste(-
servant does not apply; such an appointment is not an
appointment to a civil post.

H 21. (2012) 3 sec 111.
DEEPAK AGGARWAL v. KESHAV KAUSHIK 467
[R.M. LODHA, J.]
74. The mode of appointment of Public Prosecutor A
(including Additional Public Prosecutor and Special Public
Prosecutor) under Section 24 Cr.P .C. and the mode of
appointment of Assistant Public Prosecutor under Section 25
Cr.P.C. significantly differ. There is qualitative difference in the
role and position of Public Prosecutor and Assistant Public B
Prosecutor. As a matter of law, Assistant Public Prosecutor is
not included in the definition of 'Public Prosecutor' under
Section 2(u) Cr.P.C. In Samarendra Das22 , this Court held that
the post of Assistant Public Prosecutor was a civil post. This
position was accepted by a three-Judge Bench of this Court in c
Johri Ma/1 5 • It was stated in Johri Ma/1 5 , " •..• 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 D
State ...... " As regards 'Public Prosecutor', this Court has
consistently held that though Public Prosecutor is a holder of
'public office' and he holds a 'post' yet he is not in government
service as the term is usually understood. Despite these
differences, for the purposes of Article 233(2) there is not much E
difference in a Public Prosecutor and an Assistant Public
Prosecutor and both· of them are covered by the expression
'advocate'. It is so for more than one (eason. In the first place,
a Public Prosecutor under Section 24 is appointed by the State
Government or the Central Government for conduct of
prosecution, appeal or other proceeding on its behalf in the F
High Court or for a district and Assistant Public Prosecutor is
appointed under Section 25 by the State Government or the
Central Government to conduct prosecution on its behalf in the
courts of Magistrates. So the main function of the Public
Prosecutor as well as Assistant Public· Prosecutor is to act and/ G
or plead on behalf of the Government in a court; both of them
conduct cases on behalf of the government. Secondly and
remarkably, for the purposes of counting experience as an

28. {1987) 1 sec 288. H
468 SUPREME COURT REPORTS [2013] 1 S.C.R.

A advocate as prescribed in sub-sections 24(7) and 24(8), the
period, during which a person has rendered service as a Public
Prosecutor or as Assistant Public Prosecutor, is treated as
being in practice as an advocate under Section 24(9) Cr.P.C.
In other words, the rendering of service as a Public Prosecutor
B or as Assistant Public Prosecutor is deemed to be practice as
an advocate.

75. The three appellants namely, Deepak Aggarwal,
Chandra Shekhar and Desh Raj Chalia, at the time of their
C application, were admittedly working as Assistant District
Attorney. They were appointed under the Haryana State
Prosecution Legal Service (Group C) Rules, 1979 (for short,
'1979 Rules'). The relevant Rules read as under:

"2. Definitions.-ln these rules, unless the context otherwise
D requires:-

2(a) xxx xxx xxx

2(b) "direct recruitment" means an appointment made
otherwise than by promotion or by transfer of an official
E already in the service of the Government of India or any
State Government;

xxx xxx )()()(

6. Appointing Authority.-Appointment to the posts in the
F
service shall be made by the Director.

xxx xxx )()()(

9. Method of Recruitment.-(1) Recruitment to the
G Service shall be made:-

(i) by direct recruitment; or

(ii) by promotion; or

H
DEEPAK AGGARWAL v. KESHAV KAUSHIK 469
[R.M. LODHA, J.]
xxx xxx :xxx A
11. Seniority of Members of the service.-The seniority inter
se of members of the Service shall be determined by the
length of their continuous service on any post in the
Service.
B
Provided that in the case of members appointed by
direct recruitment, the order of merit determined by the
Commission or any other recruiting authority shall not be
disturbed in fixing the seniority:
c
Provided further that in the case of two or more
members appointed on the same date, their seniority shall
be determined as follows:

(a) a member appointed by direct recruitment shall
0
be senior to a member appointed by promotion or by
transfer;

xxx xxx :xxx
12. Liability to serve.-(1) A member of the Service shall E
be liable to serve at any place whether within or outside
the State of Haryana, on being ordered so to do by the
appointing authority;

(2) A member of the Service may also be depi,ited
to serve under,- F

(i) a company, an association or a body of
individuals whether incorporated or not, which is wholly or
substantially owned or controlled by the Government, a
Municipal Committee or a local authority, within the State G
of Haryana;

(ii) the Central Government or a company an
association or a body of individuals whether incorporated
or not, which is wholly or substantially owned or controlled
H
470 SUPREME COURT REPORTS (2013] 1 S.C.R.

A by the Central Government; or

(iii) any other State Government, an international
organisation, an autonomous body not controlled by the
Government or a private body;

B Provided that no member of the service shall be
deputed to the Central or any other State Government or
any organisation or body referred to in clause (ii) and
clause (iii) except with his consent.

c 13. Leave, pension or other matters.-xxx xxx

(2) No member of the Service shall have the right of private
practice.

14. Discipline, penalties and appeals.-(1) in matters
D relating to discipline, penalties and appeals, members of
the Service shall be governed by the Punjab Civil Services
(Punishment and Appeal) Rules, 1952, as amended from
time to time:

E Provided that the nature of penalties which may be
imposed, the authority empowered to impose such
penalties and appellate authority shall, subject to the
provisions of any law or rules made under Article 309 of
the Constitution of India, be such as are specified in
Appendix C to these rules.
F
(2) The authority competent to pass an order under clause
(c) or clause (d) of sub-rule (1) of rule 10 of the Punjab Civil
Services (Punishment and Appeal) Rules, 1952, as
amended from time to time, shall be as specified in
G Appendix 'D' to these rules."

75.1. Appendix 'B' appended to the 1979 Rules provided
for qualification and experience for Assistant District Attorney.
It reads as follows :
H
DEEPAK AGGARWAL v. KESHAV KAUSHIK 471
[R.M. LODHA, J.]
"APPENDIX B" A
(See Rule 7)

Qualifications and Experience
Designation of post ......................................................................... .
For Promotion/transfer For direct recruitment
B
Assistant District (i) Degree of Bachelor (i) Degree of Bachelor of
Attorney of Law of a recognised Law of recognised
university; and university; and

(ii) who has worked - (ii) who has practiced at the C
(a) for a period of not bar for a period of not
less than,. five years, less than two years
as Assistant in any
post in the equivalent or
higher scale in any
Government office; or
D
(b) for a period of not
less than three years on
an assignment (not less
than that of an Assistant;
involving legal work to any
E
Government office."

76. Of the other appellants, Rajesh Malhotra at the time of
making application was Public Prosecutor in the office of CBI.
His services were governed by the General Rules and CBI F
(Legal Advisers and Prosecutors) Recruitment Rules, 2002. It
is not necessary to refer to these Rules in detail. Suffice it to
say that a Public Prosecutor in CBI is appointed by Union Public
Service Commission by direct recruitment or by promotion from
in-service Assistant Public Prosecutors or by deputation from G
in-service government servants. Service conditions which are
applicable to any government servant or a member of civil
service are applicable to such Public Prosecutor. Insofar as
Dinesh Kumar Mittal is concerned, admittedly he was working
as Deputy Advocate General in the State of Punjab at the time
H
472 SUPREME COURT REPORTS [2013] 1 S.C.R.

A of his application. In the impugned judgment, he has been held
to be full-time employee of the Punjab Government.

77. We do not think there is any doubt about the meaning
of the expression "advocate or pleader" in Article 233(2) of the
B Constitution. This should bear the meaning it had in law
preceding the Constitution and as the expression was generally
understood. The expression "advocate or pleader" refers to
legal practitioner and, thus, it means a person who has a right
to act and/or plead in court on behalf of his client. There is no
C indication in the context to the contrary. It refers to the members
of the Bar practising law. In other words, the expression
"advocate or pleader'' in Article 233(2) has been used for a
member of the Bar who conducts cases in court or, in other
words acts and/or pleads in court on behalf of his client. In
Sushma Suri6 , a three-Judge Bench of this Court construed the
D expression "members of the Bar'' to mean class of persons who
were actually practising in courts of law as pleaders or
advocates. A Public Prosecutor or a Government Counsel on
the rolls of the State Bar Council and entitled to practice under
the 1961 Act was held to be covered by the expression
E 'advocate' under Article 233(2). We respectfully agree.

78. In UP. State Law Officers Association 13 , this Court
stated that though the lawyers of the Government or a public
body on the full-time rolls of the government and the public
F bodies are described as their law officers, but nevertheless they
are professional practitioners. It is for this reason, the Court said
that the Bar Council of India in Rule 49 of the BCI Rules (in its
original form) in the saving clause waived the prohibition
imposed by the said rule against the acceptance by a lawyer
G of a full-time employment. In Sushma Suri6, a three-Judge
Bench of this Court while considering the meaning of the
expression "advocate" in Article 233(2) of the Constitution and
unamended Rule 49 of the BCI Rules held that if a person was
on the rolls of any Bar Council and is engaged either by
employment or otherwise by the Union or State and practises
H
DEEPAK AGGARWAL v. KESHAV KAUSHIK 473
[R.M. LODHA, J.]

before a court as an advocate for and on behalf of such A
Government, such person does not cease to be an advocate.
This Court went on to say that a Public Prosecutor or a
Government Counsel on the rolls of the Bar Council is entitled
to practice. It was laid down that test was not whether such
person is engaged on terms of salary or by payment of B
remuneration but whether he is engaged to act or plead on its
behalf in a court of law as an advocate. The terms of
· engagement do not matter at all and what matters is as to what
such law officer engaged by the Government does - whether
he acts or pleads in court on behalf of his employer or c
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. The functions which
0
the law officer discharges on his engagement by the
Government were held decisive. We are in full agreement with
the above view in Sushma Surf.

79. While referring to unamended Rule 49, this Court in
Sushma Surf> said that Bar Council of India had understood E
the expression "advocate" as one who is actually practising
before courts which expression would include even those who
are law officers employed as such by the Government or a body
corporate.
F
80. Have the two subsequent decisions in Salish Kumar
Sharma7 and Mallaraddi H. ltagi18 differed from Sushma Surf>?
Is there any conflict or inconsistency in the three decisions?
Satish Kumar Sharma7 and Mallaraddi H. ltagi18 are the two
decisions on which very heavy reliance has been placed on G
behalf of the successful writ-petitioners (respondents). In Satish
Kumar Sharma 7 , which has been elaborately noted in the
earlier part of the judgment, this Court found from the
appointment/promotion orders in respect of the appellant
474 SUPREME COURT REPORTS (2013] 1 S.C.R.

A therein that he was required to work in the legal cell of the
Secretariat of the Board. Central to the entire reasoning in
Salish Kumar Sharma 7 is that being a full-time salaried
employee he had/has to attend many duties and his work was
not mainly and exclusively to act or plead in court. Mere
B occasional appearances on behalf of the Board in some courts
were not held to be sufficient to bring him within the meaning
of expression 'Law Officer'. In the backdrop of nature of the
office that the appellant therein held and the duties he was
required to perform and in the absence of any rules framed by
c the State Bar Council with regard to enrolment of a full time
salaried Law Officer, he was held to be not entitled for enrolment
and the exception set out in paragraphs 2 and 3 of unamended
Rule 49 of the BCI Rules was not found to be attracted. In Salish
Kumar Sharma 7 , this Court did apply the test that was
0 enunciated in Sushma Surf' viz., whether a person is engaged
to act and/or plead in a court of law to find out whether he is
an advocate. In Salish Kumar Sharma 7 when this Court
observed with reference to Chapter II of the BCI Rules that an
advocate has a duty to the court, duty to the client, duty to the
E opponent and duty to the colleagues unlike a full time salaried
employee whose duties are specific and confined to his
employment, the Court had in mind such full-time employment
which was inconsistent with practice in law. In para 23 of the
judgment in Salish Kumar Sharma 7, pertinently this Court
observed that the employment of appellant therein as a head
F of legal cell in the Secretariat of the Board was different from
the work of the Prosecutors and Government Pleaders in
relation to acting and pleading in Court. On principle of law,
thus, it cannot be said that there is any departure in Salish
Kumar Sharrna7 from Sushma Surf'.
G
81. In Mallaraddi H. ltag118, the appellants were actually
found to be government servants when they made applications
for the post of District Judges. The High Court in its judgment
in Mal/araddi H. /lag117 had noticed that the appellants had
H surrendered their certificate of practice and suspended their
DEEPAK AGGARWAL v. KESHAV KAUSHIK 475
[R.M. LODHA, J.]
practice on their appointment as Assistant Public Prosecutors/ A
Senior Assistant Public Prosecutors/Public Prosecutors in
terms of Karnakata Recruitment Rules. It was on this basis that
Karnataka High Court held that Sushma Suri6 was not
applicable to the case of the appellants. There is consonancy
and congruity with the decisions of this Court in Sushma Sun"B, B
Satish Kumar Sharma7 and Mallaraddi H. ltagP 6 and, in our
opinion, there is no conflict or inconsistency on the principle of
law.

82. In none of the other decisions viz., Mundrika Prasad c
Sinha1, Muku/ Da/aP and Kumari Shrilekha Vidyarthi3, it has
been held that a Government Pleader or a Public Prosecutor
or a District Government Counsel, on his appointment as a full-
time salaried employee subject to the disciplinary control of the
Government, ceases to be a legal practitioner. In Kumari 0
Shrilekha Vidyarthi3 while dealing with the office of District
Government Counsel/ Additional District Government Counsel,
it was held that the Government Counsel in the district were law
officers of the State which were holders of an 'office' or 'post'
but it was clarified that a District Government Counsel was not E
to be equated with post under the government in strict sense.
In Ramesh Chandra Sharma 2 1, this Court reiterated that the
appointment of any legal practitioner as a District Government
Counsel is only a professional engagement.
F
83. However, much emphasis was placed on behalf of the
contesting respondents on Rule 49 of the BCI Rules which
provides that an advocate shall not be a full time salaried
employee of any person, government, firm, corporation or
concern so long as he continues to practice, and shall, on taking· G
up any such employment, intimate the fact to the Bar Council
on whose roll his name appears, and shall thereupon cease to
practice as an advocate so long as he continues in such
employment. It was submitted that earlier in Rule 49 an
exception was carved out that a 'Law Officer' of the Central
H
476 SUPREME COURT REPORTS [2013] 1 S.C.R.

A Government or of a State or of a body corporate who is entitled
to be enrolled under the rules of State Bar Council shall not be
affected by the main provision of Rule 49 despite his being a
full time salaried employee but by Resolution dated 22.6.2001
which was published in the Gazette on 13.10.2001, the Bar
B Council of India has deleted the said provision and hence on
and from that date a full time salaried employee, be he Public
Prosecutor or Government Pleader, cannot be an advocate
under the 1961 Act.

C 84. Admittedly, by the above resolution of the Bar Council
of India, the second and third para of Rule 49 have been deleted
but we have to see the effect of such deletion. What Rule 49 of
the BCI Rules provides is that an advocate shall not be a full
time salaried employee of any person, government, firm,
corporation or concern so long as he continues to practice. The
0 'employment' spoken of in Rule 49 does not cover the
employment of an advocate who has been solely or, in any
case, predominantly employed to act and/or plead on behalf
of his client in courts of law. If a person has been engaged to
act and/or plead in court of law as an advocate although by way
E of employment on terms of salary and other service conditions,
such employment is not what is covered by Rule 49 as he
continues to practice law but, on the other hand, if he is
employed not mainly to act and/or plead in a court of law, but
to do other kinds of legal work, the prohibition in Rule 49
F immediately comes into play and then he becomes a mere
employee and ceases to be an advocate. The bar contained
!n Rule 49 applies to an employment for work other than
conduct of cases in courts as an advocate. In this view of the
matter, the deletion of second and third para by the Resolution
G dated 22.6.2001 has not materially altered the position insofar
as advocates who have been employed by the State
Government or the Central Government to conduct civil and
criminal cases on their behalf in the courts are concerned.

H 85. What we have said above gets fortified by Rule 43 of
DEEPAK AGGARWAL v. KESHAV KAUSHIK 477
[R.M. LODHA, J.]
the BCI Rules. Rule 43 provides that an advocate, who has A
taken a full-time service or part-time service inconsistent with
his practising as an advocate, shall send a declaration to that
effect to the respective State Bar Council within time specified
therein and any default in that regard may entail suspension of
the right to practice. In other words, if full-time service or part- B
time service taken by an advocate is consistent with his
practising as an advocate, no such declaration is necessary.
The factum of employment is not material but the key aspect
is whether such employment is consistent with his practising
as an advocate or, in other words, whether pursuant to such c
employment, he continues to act and/or plead in the courts. If
the answer is yes, then despite employment he continues to be
an advocate. On the other hand, if the answer is in negative,
he ceases to be an advocate.

86. An advocate has a two-fold duty: (1) to protect the D
interest of his client and pursue the case briefed to him with
the best of his ability, and (2) as an officer of the Court. Whether
full-time employment creates any conflict of duty or interest for
a Public Prosecutor/Assistant Public Prosecutor? We do not
think so. As noticed above, and that has been consistently E
stated by this Court, a Public Prosecutor is not a mouth-piece
of the investigating agency. In our opinion, even though Public.
Prosecutor/Assistant Public Prosecutor is in full-time employ
with the government and is subject to disciplinary control of the
employer, but once he appears in the court for conduct of a F
case or prosecution, he is guided by the norms consistent with
the interest of justice. His acts always remain to serve and
protect the public interest. He has to discharge his functions
fairly, objectively and within the framework of the legal
provisions. It may, therefore, not be correct to say that an G
Assistant Public Prosecutor is not an officer of the court. The
view in Samarendra Das 22 to the extent it holds that an
Assistant Public Prosecutor is not an officer of the Court is not
a correct view.
H
478 SUPREME COURT REPORTS [2013] 1 S.C.R.

A 87. The Division Bench has in respect of all the five private
appellants -Assistant District Attorney, Public Prosecutor and
Deputy Advocate General - recorded undisputed factual
position that they were appearing on behalf of their respective
States primarily in criminal/civil cases and their appointments
B were basically under the C.P.C. or Cr.P.C. That means their
job has been to conduct cases on behalf of the State
Government/C.B.I. in courts. Each one of them continued to be
enrolled with the respective State Bar Council. In view of this
factual position and the legal position that we have discussed
c above, can it be said that these appellants were ineligible for
appointment to the office of Additional District and Sessions
Judge? Our answer is in the negative. The Division Bench
committed two fundamental errors, first, the Division Bench
erred in holding that since these appellants were in full-time
D employment of the State Gc·1ernment/Central Government, they
ceased to be 'advocate' under the 1961 Act and the BCI Rules,
and second, that being a member of service, the first essential
requirement under Article 233(2) of the Constitution that such
person should not be in any service under the Union or the State
was attracted. In our view, none of the five private appellants,
E on their appointment as Assistant District Attorney/Public
Prosecutor/Deputy Advocate General, ceased to be 'advocate'
and since each one of them continued to be 'advocate', they
cannot be considered to be in the service of the Union or the
State within the meaning of Article 233(2). The view of the
F Division Bench is clearly erroneous and cannot be sustained.

88. As regards construction of the expression, "if he has
been for not less than seven years an advocate" in Article
233(2) of the Constitution, we think Mr. Prashant Bhushan was
G right in his submission that this expression means seven years
as an advocate immediately preceding the applicatit:m and not
seven years any time in the past. This is clear by use of 'has
been'. The present perfect continuous tense is used for a
position which began at some time in the past and is still
H
DEEPAK AGGARWAL v. KESHAV KAUSHIK 479
[R.M. LODHA, J.]
continuing. Therefore, one of the essential requirements A
articulated by the above expression in Article 233(2) is that such
person must with requisite period be continuing as an advocate
on the date of application.

89. Rule 11 of the HSJS Rules provides for qualifications 8
for direct recruits in Haryana Superior Judicial Service. Clause
(b) of this rule provides that the applicant must have been duly
enrolled as an advocate and has practised for a period not less
than seven years. Since we have already held that these five
private appellants did not cease to be advocate while working C
as Assistant District Attorney/Public Prosecutor/Deputy
Advocate General, the period during which they have been
working as such has to be considered as the period practising
law. Seen thus, all of them have been advocates for not less
than seven years and were enrolled as advocates and were
continuing as advocates on the date of the application. D

90. We, accordingly, hold that the five private appellants
(Respondent Nos. 9,12,13,15 and 18 in CWP No. 9157/2008
before the High Court) fulfilled the eligibility under Article 233(2)
of the Constitution and Rule 11 (b) of the HSJS Rules on the E
date of application. The impugned judgment as regards them
is liable to be set aside and is set aside.

91. Appeals are allowed as above with no order as to
costs.
F
R.P. Appeals allowed.