Balakrishnan Nair, J.

The point that arises for decision in this Writ Appeal is whether the appellant, who is a Public Prosecutor appointed by the Central Government, to conduct cases for the C.B.I., is eligible to be considered for appointment to the post of District and Sessions Judge in the Kerala State Higher Judicial Service, by direct recruitment. The appellant herein was the second petitioner in the Writ Petition. The respondents herein were respectively the respondent and first petitioner therein.

2. The brief facts of the case are the following: The High Court of Kerala as per Ext.P7 notification dated 16.4.2007, invited applications for appointment to six vacancies in the post of District and Sessions Judge, by direct recruitment from the Bar. One of the essential qualifications for appointment was that the candidate shall be a practising advocate and should have practised for a period of not less than seven years. The said qualification, as notified in Ext.P7, reads as follows:

"He shall be a practising Advocate and should have so practised for a period of not less than 7 (seven) years."

The main dispute that arose for decision in this case was whether the writ petitioners were having the said qualification.

3. The appellant herein was enrolled as an advocate by the Bar Council of Kerala on 22.1987, as evident from Ext.P2 certificate of enrolment. She was appointed as a Public Prosecutor by the Central Government on the advice of the Union Public Service Commission on 6.2.2001. The copy of the appointment order Annexure-RI would show that the appellant was appointed to Group B gazetted post under the Delhi Police Establishment. Later, the Central Government appointed her by Ext.P4 order dated 9.2001 as Special Public Prosecutor under Section 24 of the Criminal Procedure Code. Ever since, she is working as Public Prosecutor under the C.B.I. While so, as mentioned earlier, applications were invited by the High Court of Kerala by Ext.P7 notification for appointment to the post of District and Sessions Judge. The appellant applied and she was issued with Ext.P11 hall ticket to participate in a written test scheduled to be held from 210.2007 to 210.2007. Later, she was served with Ext.P13 communication dated 10.2007, informing her that she not being a practising advocate on the date of the application, her application has been rejected and the admission ticket issued to her for the test has been recalled. In the above background, the writ petition was filed.

4. In the writ petition, she did not produce the appointment order to the post of Public Prosecutor, made on the advice of the U.P.S.C. She sought reliefs in the writ petition, mainly relying on a repealed provision in Rule 49 of Chapter II of Part VI of the Bar Council of India Rules and also a decision of the Apex Court in Sushma Suri v. Govt. of National Capital Territory of Delhi [(1999(1) SCC 330].

5. The respondent in the writ petition resisted the application, contending that the said decision has since been further explained and clarified by the Apex Court in Satish Kumar Sharma v. Bar Council of Himachal Pradesh (AIR 2001 SC 509]. It was also contended that the case of the writ petitioners is squarely covered by the decision of the Division Bench of this Court in Biji v. Registrar, High Court of Kerala [2001(3) KLT 99], wherein the eligibility of an Assistant Public Prosecutor under the Kerala Government for applying to the post of Munsiff-Magistrate was considered. The respondent also pointed out that in view of the amendment to Rule 49, introduced with effect from 26.2001, the writ petitioners were ineligible. Reliance was also placed on the provisions of Article 233(2) of the Constitution of India.

6. The learned single Judge upheld the contentions of the respondent and dismissed the writ petition. It was held that the writ petitioners were full time salaried employees and therefore, they were not practicing advocates. It was also held that the