Judgment :

Application for impleadment/intervention is allowed.

2. We need not go in details of the matter. These are appeals against the High Court to the claim of the appellants herein nine in number who applied for the posts of direct District Judges and were not considered for the posts on the ground that they were holding the Government posts and they had also not put in seven years of practice as an Advocate. The appellants challenged this and the High Court has repelled the challenge taking the view that the appellants were the Government servants holding regular posts of Assistant Public Prosecutors and Public Prosecutors etc. and they were on the regular panel on the Government and were also members of the regular cadre.

The High Court formulated two points. They are as under :

"1. Whether the Petitioners 1 to 9 were practising advocates on the date of the submission of their applications to the first Respondent and as such were eligible to be considered for appointment as District Judges in terms of the qualification prescribed under Schedule given to Rule 2 of the Rules?

2. Whether the qualification prescribed in Schedule given to Rule 2 of the Rules that an applicant "must be practising on the last date fixed for submission of application, as an Advocate and must have so practised for not less than seven years as on such date" is liable to be struck down either on the ground that it runs counter to the provisions contained in Sub-Clause 2 of Article 233 of Article 14 of the Constitution of India?"

3. On the first question the High Court came to the conclusion that the appellants were not practising Advocates on the date of submission of their applications as was required by the advertisement. The High Court also came to the conclusion that the appellants had not completed seven years of practice as "Advocate". After considering the concerned Rules as also the provisions of Article 233(2), we have no hesitation in holding that since the appellants were members of the regular Government service having been regularly employed under the State Government Rules called "Karnataka Department of Prosecution and Government Litigation Recruitments Rules, 1962" they could not be said to be the Advocates while serving as Assistant Public Prosecutors or Public Prosecutors.

4. Shri Ramasesh, learned counsel appearing for the appellants tried to rely on Rule 49 of the Bar Council of India Rules and submitted that under the second part of that Rule since the appellants were doing the duty of Advocate they would be covered in the exception culled out in the second part of the Rule. This contention is clearly incorrect. There is nothing in the Karnataka Department of Prosecution and Government Litigation Recruitment Rules, 1962 suggesting that the persons selected and working therein would be acting as the Advocates before the Courts. On the other hand it is clear that the Public Prosecutors have some other duties under which they are required to work as the Director, Prosecutions and in that Role they are not required or they cannot appear before the Court. Therefore, the question of application of Rule 49 and more particularly the exception therein would not be applicable in the case of the present appellants. We have seen from the impugned judgment that the appellants specifically agreed that they were the Government servants and in that view their consideration is clearly barred under Article 233 (2) of the Constitution.

5. Shri Ramasesh, learned counsel tried to rely on the case of Sushma Suri vs. Govt. of National Capital Territory of Delhi and another reported in (1999) 1 SCC 330. We do not think that the judgment is of any help to the appellants. In that case while considering Rule 49 this Court had come to the conclusion that the appellants therein though were appointed as "Assistant Government Advocates" were actually doing the duty as the Advocates as covered by the Rule 49. We have already pointed out the non-applicatio