SUSHMA SURI REETA DUTTA JIT RAM KASANA GURU ADHIN DEEPAK KUMAR AGRAWAL MAHESH CHANDER VERMA RANBIR SINGH Vs. GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI

JUDGEMENT

(1.) Appellant responded to an advertisement issued by the High Court of Delhi inviting applications from candidates who have practised as Advocate for recruitment to the Delhi Higher Judicial Service claiming that she had put in experience for not less than seven years as an Advocate at the time of filing the application. In 1982 Mrs. Sushma Suri passed the examination of Advocate on Record conducted by Supreme Court of India and in 1986 she was appointed as Assistant Government Advocate. Thereafter, she was promoted to the post of Additional Government Advocate in the Supreme Court of India. When she was not called for interview, she filed a petition in the High Court under Art. 226 of the Constitution. The High Court relying on a Division Bench decision of the same Court in Civil Writ Petition No. 1961 of 1987 in Oma Shanker Sharma v. Delhi Administration & Anr., decided on 13-1-1988 as affirmed by this Court in S.L.P. (C) No. 3088 of 1988 held that the petitioner is not entitled to be considered for appointment. Hence this appeal.

(2.) The High Court in Oma Shanker Sharma s case (supra), held that there are two sources of recruitment to Delhi Higher Judicial Service, namely, (i) officers in Delhi Judicial Service and (ii) Advocate or Pleader of not less than seven years standing. The petitioner therein being in the service of the Union Administration could not fall under first category nor could he be treated as an Advocate since the Law Officers of the Government such as Public Prosecutors/Government Counsel may not cease to be Advocates for purposes of Advocates Act but yet they are not members of the Bar. On that basis the claim of the petitioner therein was denied. In the Special Leave Petition against that order, this Court held that the appellant being a Public Prosecutor was in the service of Union Territory and as such was not eligible to be considered for appointment in the Delhi Higher Judicial Service. However, whether such Public Prosecutor would be an Advocate was not considered by this Court in that decision. The stand of the parties in these cases is identical as in Oma Shanker Sharmas case (supra). Hence, we wish to examine the correctness of the view expressed by the High Court as to whether a Public Prosecutor/ Government Counsel/Standing Counsel of any Corporation or authority would cease to be an Advocate for the purpose of Art. 233(2) of the Constitution so as not to belong to the Bar.

(3.) The Rules of recruitment have been framed under Proviso to Art. 309 of the Constitution known as Delhi Higher Judicial Service Rules, 1970 (hereinafter referred to as the Rules). Rule 5 thereof provides for the mode of recruitment. The recruitment of persons to the service shall be made by the Administrator in consultation with the High Court. In regard to the persons not already in Delhi Judicial Service, appointment to service shall be made by the Administrator on the recommendations to be made by the High Court. Rule 7 pertains to regular recruitment and provides that persons who had been recruited and promoted on the basis of selection from members of the Delhi Judicial Service, who have completed not less than ten years of service in Delhi Judicial Service and by direct recruitment from the Bar provided that not more than one-third of the posts in the service shall be held by direct recruits. Obviously, this rule has been framed to be in conformity with Art. 233 of the Constitution. Art. 233(1) thereof provides for appointments of persons who are already in service while Art. 233(2) provides that a person not already in service is eligible for appointment if he has been for not less than seven years as an Advocate or a Pleader and is recommended for the purpose by the High Court. Referring to the expression service in Art. 233(2) it has been held by this Court in Chander Mohan v. Union of India, AIR 1966 SC 1987 and Satya Narain Singh v. Union of India, AIR 1985 SC 308, that it means judicial service. However, it is not the contention either before the High Court or before us that the appellant is in judicial service. On the other hand, the contention is that she has more than seven years' experience as Advocate and, therefore, is fully eligible to be appointed to the Higher Judicial Service and the High Court was not justified in not considering her case for appointment. Hence, we have to examine the only question whether the appellant is an Advocate for the purpose of Art. 233(2) of the Constitution and from the Bar as envisaged in Rule 7 of the Rules.