Important Point
Bar Council of India has understood the expression ‘advocate’ as one who is actually practising before Courts which expression would in­clude even those who are law officers appointed as such by the Govt. or Body Corporate.

Judgment

Rajendra Babu, J.-Civil Appeal No. 3021 of 1997

Appellant responded to an advertisement issued by the High Court of Delhi inviting applications from candidates who have practiced as advocate for recruitment to the Delhi Higher Judicial Service claiming that she had put in experience for not less then seven years as an advocates 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 Article 226 of the Constitution. The High Court relying on a Division Bench decision of the same court in Oma Shanker Sharma v. Delhi Administration & Anr.1, as affir­med by this Court in S.L.P. (C) No. 3088/ 88 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 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 Sharma’s 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 Article 233(2) of the Constitution so as not to belong to the Bar.

3. The Rules of recruitment have been framed under Proviso to Article 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 Article 233 of the Constitution. Article 233(1) thereof provides for appointments of persons who are already in service while Article 233(2) provides that a person not already in service is eligible for appointment if he has been for not less than seven years an advocate or a Pleader and is recommended for the pur­pose by the High Court. Referring to the expression `service’ in Article 233(2) it has been held by this Court in Chander Mohan v. Union of India2 and Satya Narain Singh v. Union of India3, that it means “judicial service”. However, it is not the contention eit