JUDGMENT Palok Basu and M. L. Singhal, JJ.
1. Those who have the fortune of being personally acquainted with the honourable profession of law are perhaps at an advantageous position to appreciate the opportunities it provides, and sometimes the lack of it, to show one's merit for which it has come to be known as a profession of glorious uncertainties. Going shoulder to shoulder with brother colleagues in and outside the courts and then maintaining brotherhood of the sincerest level-inspite of representing contesting parties add luster to this great profession of law. Advocates in themselves constitute a strong body of citizens safeguarding social interests. It is this profession of law alone through which one may Join the Bench as Munsif (now Civil Judge-Junior Division), as District Judge, as High Court or even Supreme Court Justice. Our Constitutional provisions have thus bestowed this profession of law with singular honour and unparalleled dignity.
2. Articles 233 to 237 of the Constitution of India deal with appointment and recruitment of District Judges and subordinate courts while Articles 217 to 224A provide for appointment of High Court Judges, and Article 124 of Supreme Court Judges. The U. P. Higher Judicial Services Rules (for short, H.J.S. Rules) were framed in order to make direct recruitment from the bar to the Higher Judicial Service of the State. For ready reference. Rule 5 of the Higher Judicial Services Rules is usefully quoted here (the proviso and explanation are omitted as are not necessary):
"5. Sources of recruitment.--The recruitment to the service shall be made-
(a) by direct recruitment of pleaders and advocates of not less than seven years standing on the first day of January next following the year in which the notice inviting applications is published ;
(b) by promotion of confirmed members of the Uttar Pradesh Nyayik Sewa (hereinafter referred to as the Nyayik Sewa), who have put in not less than seven years' service to be computed on the first day of January next following the year in which the notice inviting applications is published."
3. It may be noted that the words "pleaders and advocates of not less than seven years standing has come up for interpretation in these two petitions. If it can be legitimately interpreted that pleader and advocate can also include those who are employed as Law Officer in some Corporation or State undertaking, the petitioners may have a case, but if it is held that the intention of the Legislature and the rule-making authority was that candidates applying for direct recruitment should be regular members of the bar, then the petitions cannot succeed.
4. Admittedly, the petitioner Guru Adhin is working as Law Officer in M/s. Modern Food Industries (1) Ltd., a Government of India Enterprise and the petitioner Deepak Kumar Agrawal is working as a Law Officer in the U. P. Financial Corporation, Kanpur. Since pleadings of both the petitioners are identical, the word 'Petitioner' appearing hereafter will apply to both the petitioners.
5. Admittedly, both the petitioners filed their applications for appearing in the Higher Judicial Services Examination for the year. 1992 held in 1994. While the High Court Registry initially accepted those applications, by two subsequent letters dated 4.11.1996, the Registrar intimated the petitioners that the acceptance of the applications by the Registry was under wrong notions and since both of them lacked necessary qualification for being allowed to appear as direct-recruit candidates under the Rules, their applications have been cancelled by the impugned orders dated 4.11.96, challenged in these petitions. When the writ petitions were filed, by an interim order the petitioners were permitted to appear at the ensuing examination lest no injustice be done. Simultaneously counter and rejoinder-affidavit were called which have been filed. As prayed by the learned counsel for the parties, the writ petitions are being heard and disposed of on merits finally at the admission stage.
6. Shri Guru Dayal Srivastava, learned senior Advocate on behalf of the petitioner Guru Adhin and Shri Chandra Prakash, learned Advocate on behalf of the petitioner Deepak Kumar Agrawal have been heard at substantial length. Shri Vinod Swaroop, learned Additional Advocate General assisted by Shri S. G. Husnain and Shri Vinod Kumar have appeared for the State of U. P. and Shri S.M.A. Kazmi, learned counsel has appeared for the High Court.
7. It was strongly contended that under the relevant rules, in both the corporations the petitioner have been permitted to retain their enrolment as an Advocate and were appointed as Law Officers because of their continuing as Advocates under the Bar Council Rules and, therefore, the petitioner can and should be permitted to appear at the Higher Judicial Services Examination as they allegedly fulfil the requirements noted in the relevant Rule 5 of H.J.S. Rules. The provisions as contained in Rule 49 of the All India Bar Council Rules have also been relied upon, which is quoted below :
"Nothing in this rule shall apply to a Law Officer of the Central Government or a State or any public corporation or body constituted by statute who is entitled to be enrolled under the Rule of State Bar Council under Section 29(2)(d) read with Section 24(1)(e) of the Act despite being a full time salary employee."
8. Learned counsel for the petitioners also relied upon a circular dated 26.6.1986 issued by Punjab National Bank, relying upon some directions of Reserve Bank of India permitting "full-time-law-officers" to appear as Advocates, file Wakalatnamas and assist "in-charge counsel" in courts in suits of specified lower valuations. They also relied upon the Sections 24(1)(e) and 29(2)(d) of the Advocates Act.
9. On the strength of these provisions, it was argued that the forms have been wrongly rejected by the Registrar and both the petitioners are fully eligible for appearing at the test for seeking direct recruitment to the Higher Judicial Service.
10. The question which thus arises is as to how can the petitioners who have already joined employment under corporation and Bank respectively, still claim to be pleader or advocate with standing of seven years at the bar. It was contended by the respondents that the requirement of the rule, i.e., "seven years standing as pleader or an advocate," should admit no other interpretation except that the petitioners should have continued to be members of the profession as pleader or an advocate without full-time employment.
11. Looking closely at the provisions of the Advocates Act, it may be noticed that now there may be a class of pleaders or advocates who are no more members of the Bar as it is, because they may be in the employment with an authority, corporation or office. If such authority or corporation or office permits their employment with the rigour that they will be appearing in courts on their behalf to assist the in-charge-counsel by filing wakalatnama, they are at best "employed-advocates" or "employed pleaders" and certainly not independent members of the profession of law. Thus, by this definition, the position of the instant two petitioners become obvious.
12. In the concise Oxford Dictionary, the word 'standing' has been attributed the meaning "duration, length of service, partnership etc". On a plain reading of what has been noted above, the requirement of seven years standing would indicate the continuance in the profession of law as pleader or an advocate for seven years.
13. Moreover, the aforesaid Rule 49, as is clear from the contents, makes a compromise with its own earlier provision which prohibits an advocate to be in employment simultaneously with enrolment continuing. Having noticed the need of Banks and corporations to permit paid law officers to appear in a court in particularised cases and that too for assisting "in-charge-counsel" and further that such body. Corporations, offices or authorities may require employed advocates in their staff to appear on their behalf only, the Bar Council apparently has made the aforesaid provision by introducing Rule 49 quoted above. This provision, therefore, at best creates a class of employed advocates as mentioned above who cannot plead independently as regular advocates or the pleaders do, which is the requirement of Rule 5 of the Higher Judicial Services Rules. The rule creates an exception to the law.
14. The practical exercise of lawyers in the different courts, the litigation experience of the lawyers which would be gained in their profession are certainly the requirements which the framers of the rules thought necessary for lawyers to be selected through H.J.S. Rules. That is why it has been provided that the direct recruits shall be from pleaders and the lawyers of not less than seven years standing. Any other interpretation of the words "Pleaders and Lawyers of not less than seven years standing" is likely to frustrate the aforesaid intention inasmuch as the genuine-advocates would be side-lined.
15. It is hereby made clear that on the day a candidate applies for recruitment to Higher Judicial Services of this State, he must be in the regular practice as a pleader or an advocate and be of seven years standing. An employed-advocate or pleader cannot be permitted to simultaneously clamour for being inducted into the Higher Judicial Services. As mentioned above, lawyers practising independently for seven years is the qualification. A law officer being in employment under any authority, corporation, bank or body corporate cannot be a legitimate candidate for recruitment to H.J.S. under Rule 5 of H.J.S. Rules.
16. An authoritative pronouncement of the Hon'ble Supreme Court is available in the case of C.P. Agarwala v. C.D. Parekh, AIR 1970 SC 1061, which has explained that"..... pleader of a High Court used in Constitution Acts of 1915 and 1935 and the expression "an Advocate of a High Court" used in Articles 217(2)(6) and 124(3) must mean respectively a pleader or an advocate on the roll as such of a High Court and entitled as of right by that reason to practise in the High Court....." . A law officer does not get a right to practise as of right by the fact of enrolment because it is only empowering him to appear as a law officer of his employer only and for that limited purpose alone, his enrolment stands authorised by Sections 24(1)(e) and 29(2)(d) and Rule 49 quoted above.
17. It may be mentioned here that some candidates for selection to H.J.S. who were working as Public Prosecutors strongly contended that since they are also practising in the Courts subordinate the High Court and have been working as such, they may be permitted to appear as candidates for said selection. A Division Bench has rejected the said contention on the ground that such persons cannot be called as advocates and were not entitled to add APP Services words towards the requirement of seven years standing as advocate or pleader see Akhilesh Kumar Mishra v. Registrar, High Court, 1995 (1) AWC 308.
18. It was also contended that since the petitioners were permitted by the respective Bar Associations to continue as a Member even though they were Law Officers, this Court should take judicial notice of the said fact and hold that the petitioners are regular members of the profession of law. If a respective Bar Association has made certain provision for enrolment even of an employed advocate as member of their association, it is a personal matter between such association and such employed advocate having no effect whatsoever on the interpretation of Rule 5 of the Higher Judicial Services Rules. No other point was argued.
19. The writ petitions consequently fail and are dismissed. Interim orders are vacated. The examination in which the petitioner have appeared under interim orders, shall be treated as cancelled.