( 1 ) THE question raised in this petition under Article 226 of the Constitution of India is whether the petitioners who have taken full time employment as Public Prosecutors, are eligible for appointment to the Delhi Higher Judicial Service.

( 2 ) THE High Court of Delhi, respondent No. 2, issued public notice and invited applications from practising advocates possessing the qualifications and satisfying the conditions enumerated in the advertisement for direct recruitment to the Delhi Higher Judicial Service. In response to the advertisement, petitioner No. I applied and claims that he fully satisfies the qualifications prescribed for the appointment and is eligible for being considered and fit to be appointed on merits. Petitioner No. I is admittedly employed as Public Prosecutor in Delhi under the direct control of Delhi Administration. The eligibility of petitioner No. 1 was examined and it was found by respondent No. 2 that petitioner No. 1 and similarly situated persons are ineligible for direct recruitment as the same is meant only for practising advocates with seven years or more practice at the Bar. The decision was communicated to petitioner No. I by the impugned letter dated May 13, 1987. Petitioner No. 2 is the association of all the Public Prosecutors in Delhi. The petitioners contend that the view taken by respondent No. 2 is not tenable and is bad in law and is entitled to be set aside on its judicial side. Before the commencement of the arguments we informed the counsel for the petitioners about our participation and in fact the participation of all sitting Judges in the decision of respondent No. 2. They reposed full confidence in our judgment on the judicial side. We must record our sincere appreciation to this approach.

( 3 ) THE first submission of Shri V. C. Mahajan and Ms. Urmila Kapoor, the learned counsel for the petitioners is that there is no constitutional prohibition against the appointment of a Public Prosecutor to the Delhi Higher Judicial Service provided he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for such appointment. The contention is that the Public Prosecutors who had put in seven years practice at the Bar before joining their posts, are not persons already in the "service of the Union or State" within the meaning of Article 233 (2) of the Constitution and as such they are eligible. Our attention is invited to the decision of the Supreme Court in "rameshwar Dayal v. State of Punjab" , reported in A. I. R. 1961 S. C. 816 wherein it was held :-

". . . . . . ARTICLE 233 is a self contained provision regarding the appointment of District Judges. As to a person who is already in the service of the Union or of the State, no special qualifications are laid down and under Clause (1) the Governor can appoint such a person as a district Judge in consultation with the relevant High Court. As to a person not already in service, a qualification is laid down in Clause (2) and all that is required is that he should be an advocate or pleader of seven years standing. The clause does not say how that standing must be reckoned and if an Advocate of the Punjab High Court is entitled to count the period of his practice in the Lahore High Court for determining his standing at the Bar, we see nothing in Article 233 which must. . lead to the exclusion of that period for determing his eligibility for appointmentasdistrictjudge. "in that case the appointment of two of the respondents, namely, S. Harbans Singh who was Deputy Custodian, Evacuee Property and Shri P. P. R. Sawhney who was Officer on Special Duty and Administrator, Rajpura Township under the Ministry of Rehabilitation, at the time of their appointments as Additional District Judges under the Punjab High Court, was upheld as they had the necessary standing of seven years to be eligible under Clause 2 of Article 233 of the Constitution. The second submission is that Public Prosecu