(1.) A writ of quo warranto was sought from this Court calling upon Mr. B. S. Nehra, District and Sessions Judge, Punjab, at present posted as Legal Remembrancer and Secretary to Government, Punjab Law and Legislative Department, Punjab, to show before this Court under what authority he is holding the office as a District and Sessions Judge. A letter dated 15/05/1989, purporting to be sent by Mukhtiar Singh, Ex-Sarpanch, Village Tandian, District Bhatinda was received. It was treated as writ petition and direction was issued to serve notices on Advocate General, Punjab, Advocate General, Haryana, Mr. B. S. Nehra and the petitioner. The petitioner was served through his son, but he did not put in appearance.
(2.) The facts: Mr. B.S. Nehra (respondent) was enrolled as a pleader on 18/07/1953 and he was enrolled as an Advocate of the Punjab High Court on 24/10/1958. Later on after the coming into force of the Advocates Act, 1961, the Bar Council of Punjab issued him certificate of enrolment as an Advocate under S.22 of that Act on 2/03/1964. He was. appointed as Assistant District Attorney by the Governor, Punjab, on 20/02/1961. The appointment envisaged that he will be a Government pleader within the meaning of sub-sec. (7) of S. 2 of the Code of Civil Procedure and Public Prosecutor under the Code of Criminal Procedure. In response to an advertisement issued by the Punjab and Haryana High Court inviting applications for posts of Additional District and Sessions Judges, the respondent applied for the same. Along with the application he appended a certificate issued by the District and Sessions Judge, Patiala, to the effect that the respondent remained on the rolls as Pleader from July, 1953 to July, 1956 and from 29/10/195 6/12/1958. The respondent was selected by the High Court and was appointed by the State Government on 1/04/1975. He submits that he had been a practising Advocate for more than 14 years exclusive of five years of practice as a Pleader and he fulfilled the qualifications laid down in Art. 233 of the Constitution for appointment as a District Judge. He further submits that during the period he was working as Assistant District Attorney or District Attorney, he remained enrolled as an Advocate. The Bar Council of India in exercise of power under S.49 of the Advocates Act, 1961 (for short "the Actand') framed rules. R.49 of the rules provided 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. A proviso has been added to this rule which excluded its applicability to Law Officers of Central or State Government or Public Corporation or Body constituted by a statute who is entitled to be enrolled under the rules of his State Bar Council made under S. 28(2)(e) read with S. 24(1)(e) of the Act.
(3.) Despite his being a full-time salaried employee, a Law Officer for the purpose of this rule means a person who is designated by the term of his employment and who by the said term is required to and/or plead in Court on behalf of his employer. The period during which he was serving as Assistant District Attorney or District Attorney, he was a Government Pleader within the meaning of sub-sec.(7) of S.2 of the Code of Civil Procedure and Public Prosecutor within the meaning of S. 24 of the Code of Criminal Procedure in that capacity, he was required to act or plead in Courts on behalf of the Government. This period during which he continued in service as such, he will be deemed to be practising as an Advocate.