V. Giri, J.

1. The petitioners are functioning as Special Public Prosecutors for the conduct of cases instituted by Delhi Special Police in the trial court and appeals and revisions before the revisional and appellate courts. They were enrolled as Advocates on 12-10-1985 and 2-2-1987 respectively. While so, they were appointed as Public Prosecutors by the Central Government in exercise of its powers under Section 24 of the Code of Criminal Procedure (for short 'the Code'). The first petitioner w as practising as an advocate in various courts, civil and criminal, until 1991 from 12-10-1985 to 18-4-1991 and the second petitioner was practising as an Advocate from 19-3-1987 to 15-4-2001. The respondent invited applications for appointment as District and Sessions Judges in the Kerala State Higher Judicial Service by direct recruitment. Clause 3 of Ext. P-7 notification reads as follows:

"3. Qualification for appointment:

A candidate for appointment as District Judge from the Bar shall satisfy the following conditions

(a) He shall be a Citizen of Indian Union.

(b) He shall not have completed 47 years of age on the first day of January. 2007.

(c) He shall be of good character.

(d) He shall be of sound health and active habits and free from any bodily defect or infirmity which renders him unfit for such appointment.

(e) He shall not have more than one wife living unless exempted by the Government on special grounds.

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

2. The petitioners submitted applications and originally hall tickets were issued. On further scrutiny, it was found that they were not eligible. Therefore, the hall tickets were withdrawn. Such withdrawal was intimated to the petitioner by Exts. P-12 and P-13 communications issued by the Registrar (Subordinate Judiciary). The reason given therein is that the petitioners have been in permanent employment of the Government, functioning as Public Prosecutors with the Central Bureau of Investigation and since they were not practising advocates on the date of application, they were not eligible for-being considered for appointment as District and Sessions Judges in the Kerala State Higher Judicial Service. It is the said stand taken by the respondent that is challenged by the petitioners in this writ petition.

3. In the counter-affidavit filed by the respondent, it is contended that the petitioners, even according to them, are holding substantive posts of Public Prosecutors in regular full time service and therefore, they are not practising advocates. Reference is made in the counter-affidavit to Rule 49 of the Bar Council of India Rules (for short the Rules'), It is contended that a Bench of this court in the decision reported in Biji v. Registrar 2001 (3) KLT 99 held that assistant Public Prosecutors Grade II appointed by the State Government, are not practising advocates and that consequently, they were not eligible to be considered for appointment as Munsifl-Magistrates. The same principle applies in the case of District Judges also.

4. I heard Mr. S. Sreekumar, learned for the petitioner and learned senior counsel for the respondent Mr. K.R.B. Kaimal.

5. The writ petition has proceeded on the premise that Rule 49 of the Bar Council of India Rules which contemplates a bar of advocates negotiating in business or taking up ally full time employment has carved out art exception in the case of Law Officers of the Central Government or of a State or any public corporation or body constituted under a Statute, Reference in this regard is made to the judgment of the Supreme Court reported in Sushma Suri v. Govt. of National Capital Territory of Delhi 1999 (1) SCC 330. Reference is also made to the subsequent judgment of the Supreme Court in Satish Kumar Sharma v. Bar Council of Himachal Pradesh AIR 2001 SC 509 and the decision of a Bench of this court in Biji v. Registrar, High Court of Kerala (supra). In the judgments a