1985 Supreme(SC) 206

SUPREME COURT OF INDIA
M.M. Punchhi CJI., K.T. Thomas and S. Rajendra Babu, JJ.
c.A. No. 3021 of 1997 (with C.A. No. 3022 of 1997) (Reeta Dutta v. Registrar, High Court of Delhi and Another) (with C.A. No. 3023 of 1997) (lit Ram Kasana v. Govt. of National Capital Territory of Delhi and Others) (with c.A. No. 8359 of 1997) (Guru Adhin v. State of U.P. and Another) (with C.A. No. 8360 of 1997) (Deepak Kumar Agarwal v. The Registrar, High Court of Judicature at Allahabad & Another) (with W.P. (C) No. 189 of 1997) (Mahesh Chander Verma & Others v. Registrar, High Court of Delhi and Others) (with W.P. (C) NO.2 of 1998) (Ranbir Singh v. The Registrar, High Court of Rajasthan and Another)
Decided On: 08.10.1998
Sushma Suri Appellants
versus
Govt. of National Capital Territory of Delhi & Anr. Respondent

Headnote:

Bar Council of India Rules – Rule 49 – Advocates Act – Section 2 – Constitution of India, 1950 – Articles 226, 309, 233, 32 – Delhi Higher Judicial Service Rules, 1970 – Recruitment – Appointment – 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 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 oflndia. – 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 Civil Writ Petition in Oma Shanker Sharma v. Delhi Administration and Am., decided as affirmed by this Court in S.L.P. (C) held that the petitioner is not entitled to be considered for appointment. – Hence this appeal. – Held, Under Rule 49 of the Bar Council of India Rules an advocate shall not be a full time employee of any person, Government, Firm. – Corporation or concern and on taking up such employment shall intimate such fact to the concerned Bar Council and shall cease to practise as long as" he is in such employment. – However, an exception is made in such cases to Law Officers of the Government and Corporate bodies despite his being a full time salaried employee if such Law Officer is required to act or plead in Court on behalf of others. – It is only to those who fall into other categories of employment that the bar Under Rule 49 would apply. – An advocate employed by the Government or a Body Corporate as its Law Officer even on terms of payment of salary would not cease to be an advocate in terms of Rule 49 if the condition is that such advocate is required to act or plead in Courts on behalf of the employer. – The test, therefore. is not whether such person is engagcd on terms of salary or by payment of remuneration, but whether he is engaged to act or plead on its behalf in a Court of law as an advocate. – In that event the terms of engagement will not matter at all. – What is of essence is as to what such Law Officer engaged by the Government does - whether he acts or pleads in Court on behalf of his employer or otherwise. – If he is not acting or pleading on behalf of his employer, then he ceases to be an advocate. – If the terms of engagement are such that he does not have to act or plead, but does other kinds of work, then he becomes a mere employee of the Government or the Body Corporate. – Therefore, 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 Government or body corporate. – If that be the true position, we fail to understand how the object of recruitment could be defeated if these persons are also allowed to participate in the recruitment process. – None of the decisions referred to in Oma Shanker Sharmas case has examined the matter in this perspective. – Either those decisions were concerned with the distinction between service and judicial service or meaning of expression advocates in other contexts. – Court think it is in this manner that the expression used in Article 233(2) of the Constitution has to be understood and the rules framed by the Delhi Administration in this regard have to be read in the light of the constitutional provisions. – The expression used from the Bar would only mean from the class or group of advocates practising in Courts of law. – It does not have any other attribute. – Court is not in a position to give any relief to the appellant before us now because when she commenced this litigation, recruitment process was still going on and it has gone too far ahead. – Now that the same is complete and the selected candidates have already been appointed and they have reported to duty at different places and they are not impleaded as parties in these proceedings, it would not be proper to upset such appointments. – All that court can now do is to direct the authorities concerned including the High Court and Government to process the applications for recruitment of candidates in future in the light of the position as explained above. – If there are any pending recruitments, the view taken by us shall be applied to them also. – Appeal Disposed of