PROF CHANDRA PRAKASH AGARWAL Vs. CHATURBUJ DAS PARIKH

JUDGEMENT

(1.) The appellant filed a writ petition in the High Court at Allahabad for a quo warranto against respondent 1, challenging therein his appointment as a Judge of that High Court. The ground on which he challenged the appointment was that though respondent 1 was enrolled as an advocate more than 20 years ago, he could not still claim to be one who "has for at least ten years been an advocate of a High Court" within the meaning of Article 217 (2) (b) of the Constitution, as admittedly respondent 1 was all along practising at Benaras and not in the High Court.

(2.) The writ petition came up for a preliminary hearing before W. Broome and G. Kumar, JJ., when it was urged that the expression "an advocate of a High Court" in Article 217 (2) (b) meant an advocate practising in the High Court and not one practising in a Court or Courts subordinate to the High Court. In support of that interpretation, the language used in Article 124 (3) on the one hand and that in Article 233 (2) on the other was relied on to show that the Constitution has employed different language in connection with different purposes thereby making a deliberate distinction between "an advocate" and "an advocate of a High Court", the former meaning an advocate practising in a Court or Courts subordinate to the High Court and the latter meaning an advocate practising in a High Court. The contention was that while dealing with the qualifications for the post of a District Judge Article 233 (2) uses the expression "an advocate" as distinguished from the expression "advocate of a High Court" in Articles 217 (2) (b) and 124 (3) which lay down the qualifications for the offices of a Judge of a High Court and a Judge of the Supreme Court. The difference in the language, it was contended, indicated that whereas a person to be appointed a District Judge need be only an advocate of the prescribed standing, the one to be appointed a Judge either of a High Court or the Supreme Court must be an advocate who has practised for the required number of years in a High Court or two or more High Courts in succession. It was further contended that such an indication is also furnished by the language of Article 124 (3) (a) and (b), in the sense that just as the expression "a Judge of a High Court" in sub-clause (a) must mean a Judge who has worked as a Judge in the High Court, the expression "an advocate of a High Court" must similarly mean an advocate who has practised in a High Court.

(3.) There was a difference of opinion between the two learned Judges. Broome, J., held that "on a plain reading of the relevant clauses" the correct interpretation of the expression "an advocate of a High Court" meant an advocate enrolled as an advocate of a High Court, irrespective of whether on such enrolment he practised in a High Court or a Court or Courts Subordinate to the High Court. G. Kumar, J., on the other hand, accepted the contention urged on behalf of the appellant and held that the expression "an advocate of a High Court" meant one who has practised for the required period in a High Court, and therefore, a person who has practised only in a Court or Courts Subordinate to the High Court would not answer the qualification required under Article 217 (2) (b). Such a difference of opinion having thus arisen between the two learned Judges, the matter was referred to Mathur, J., who agreed with Broome, J., and thereupon the writ petition was dismissed. The present appeal on certificate granted by the High Court challenges the correctness of the order dismissing the writ petition.