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PUNJAB & HARYANA HIGH COURT
V.Ramaswami and G.R.Majithia JJ.
Mukhtiar Singh
Versus
State Of Punjab
Civil Writ Petition No. 6701 of 1989,
Decided On : JUNE 1, 1989
QUO WARRANTO - APPOINTMENT OF DISTRICT JUDGE - ART. 233 OF THE CONSTITUTION - ADVOCATE WITH 14 YEARS OF PRACTICE INCLUDING 5 YEARS AS PLEADER - VALIDITY OF APPOINTMENT - WRIT OF QUO WARRANTO - DISCRETION OF THE COURT.
Fact of the Case:
A writ of quo warranto was sought to challenge the appointment of Mr. B. S. Nehra as a District and Sessions Judge, Punjab, on the ground that he did not fulfill the qualifications laid down in Art. 233 of the Constitution.
Finding of the Court:
The court held that the respondent, Mr. B. S. Nehra, fulfilled the qualifications laid down in Art. 233 of the Constitution for appointment as a District Judge. The court found that the respondent had been a practicing Advocate for more than 14 years, including 5 years of practice as a Pleader, and that this period would be deemed to be a period spent in practice as an Advocate.
Issues: 1. Whether the respondent, Mr. B. S. Nehra, fulfilled the qualifications laid down in Art. 233 of the Constitution for appointment as a District Judge? 2. Whether the court should issue a writ of quo warranto to challenge the appointment of the respondent as a District and Sessions Judge?
Ratio Decidendi: 1. The court held that the expression "District Judge" includes an Additional District Judge and that Art. 233 of the Constitution is a self-contained provision regarding the appointment of District Judges. 2. The court held that the respondent fulfilled the requirement of having been an Advocate of seven years' standing, as he had been a practicing Advocate for more than 14 years, including 5 years of practice as a Pleader. 3. The court held that the period during which the respondent served as Assistant District Attorney or District Attorney would be deemed to be a period spent in practice as an Advocate, as he was required to act or plead in Courts on behalf of the Government in that capacity. 4. The court held that a writ of quo warranto is not issued as a matter of right and that the Court should consider all the circumstances of the case, including lapse of time, and circumstances which would establish laches, acquiescence, or estoppel.
Final Decision: The court dismissed the complaint, which was treated as a writ petition.
G.R.MAJITHIA, J.
1. A writ of quo warranto was sought from this Court calling upon Mr. B. S. Nehra, District and Sessions Judge, Punjab, at present posted as Legal Remembrancer and Secretary to Government, Punjab Law and Legislative Department, Punjab, to show before this Court under what authority he is holding the office as a District and Sessions Judge. A letter dated 15/05/1989, purporting to be sent by Mukhtiar Singh, Ex-Sarpanch, Village Tandian, District Bhatinda was received. It was treated as writ petition and direction was issued to serve notices on Advocate General, Punjab, Advocate General, Haryana, Mr. B. S. Nehra and the petitioner. The petitioner was served through his son, but he did not put in appearance.
2. The facts: Mr. B.S. Nehra (respondent) was enrolled as a pleader on 18/07/1953 and he was enrolled as an Advocate of the Punjab High Court on 24/10/1958. Later on after the coming into force of the Advocates Act, 1961 , the Bar Council of Punjab issued him certificate of enrolment as an Advocate under S.22 of that Act on 2/03/1964. He was. appointed as Assistant District Attorney by the Governor, Punjab, on 20/02/1961. The appointment envisaged that he will be a Government pleader within the meaning of sub-sec. (7) of S. 2 of the Code of Civil Procedure and Public Prosecutor under the Code of Criminal Procedure. In response to an advertisement issued by the Punjab and Haryana High Court inviting applications for posts of Additional District and Sessions Judges, the respondent applied for the same. Along with the application he appended a certificate issued by the District and Sessions Judge, Patiala, to the effect that the respondent remained on the rolls as Pleader from July, 1953 to July, 1956 and from 29/10/195 6/12/1958. The respondent was selected by the High Court and was appointed by the State Government on 1/04/1975. He submits that he had been a practising Advocate for more than 14 years exclusive of five years of practice as a Pleader and he fulfilled the qualifications laid down in Art. 233 of the Constitution for appointment as a District Judge. He further submits that during the period he was working as Assistant District Attorney or District Attorney, he remained enrolled as an Advocate. The Bar Council of India in exercise of power under S.49 of the Advocates Act, 1961 (for short "the Actand) framed rules. R.49 of the rules provided that an Advocate shall not be a full-time salaried employee of any person, Government, firm, corporation, or concern so long as he continues to practice. A proviso has been added to this rule which excluded its applicability to Law Officers of Central or State Government or Public Corporation or Body constituted by a statute who is entitled to be enrolled under the rules of his State Bar Council made under S. 28(2)(e) read with S. 24(1)(e) of the Act.
3. Despite his being a full-time salaried employee, a Law Officer for the purpose of this rule means a person who is designated by the term of his employment and who by the said term is required to and/or plead in Court on behalf of his employer. The period during which he was serving as Assistant District Attorney or District Attorney, he was a Government Pleader within the meaning of sub-sec.(7) of S.2 of the Code of Civil Procedure and Public Prosecutor within the meaning of S. 24 of the Code of Criminal Procedure in that capacity, he was required to act or plead in Courts on behalf of the Government. This period during which he continued in service as such, he will be deemed to be practising as an Advocate.
4. The expression "District Judge" includes an Additional District Judge. Art. 233 of the Constitution is a self-contained provision regarding appointment of District Judge. It contains two sources of recruitment as District Judges. The streams are separate. Only they get together after appointment. Cl. (i) deals with persons who are already in service. As to a person who is already in service of the
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