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2019 Supreme(P&H) 2331
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
A.B. Chaudhari, Harnaresh Singh Gill, JJ.
Vinod Kumar - Appellants
Versus
State Of Haryana And Others - Respondent
CWP No. 13716 of 2017 (O&M)
Decided On : 23-01-2019
Mr. Sandeep Verma, Advocate, for the Appellant; Ms. Kirti Singh, DAG, Haryana, Mr. Kanwal Goyal, Advocate. Mr. Rishi Pal Singh, Advocate, for the Respondent
The main legal point established in the judgment is that the condition of enrollment with the Bar Council for the post of Assistant District Attorney is valid and meets the requirement of law.
Headnote:
Bar Council Enrollment - Assistant District Attorney - Advocates Act, 1961, Section 29, Section 30 - The court discussed the requirement of enrollment with the Bar Council for the appointment of Assistant District Attorney, emphasizing the provisions of the Advocates Act, 1961 and the necessity of being enrolled as an advocate to practice in court, and concluded that the condition of enrollment with the Bar Council for the post of Assistant District Attorney is valid and meets the requirement of law.
Fact of the Case:
The petitioners, government employees, challenged a notification and advertisement that restrained them from participating in the selection process for the post of Assistant District Attorney due to their non-enrollment as advocates with the Bar Council.
Finding of the Court:
The court found that the condition of enrollment with the Bar Council for the post of Assistant District Attorney is valid and meets the requirement of law, dismissing the writ petition.
Issues: The main issue was whether the condition of enrollment with the Bar Council for the post of Assistant District Attorney was valid and in compliance with the law.
Ratio Decidendi: The court held that the Assistant District Attorney is essentially an advocate who practices in court on behalf of the government, and therefore, the requirement of enrollment with the Bar Council is valid as per the provisions of the Advocates Act, 1961.
Final Decision: The writ petition was dismissed as it was devoid of any merit.
JUDGMENT
Harnaresh Singh Gill, J. - The present writ petition has been filed by the petitioners being aggrieved by the notification dated 10.10.2001 (Annexure P1) and advertisement dated 09.05.2017 (Annexure P-2) restraining petitioners in participating in the selection process for the post of Assistant District Attorney, as they are not enrolled as Advocate with Bar Council being government employees.
FACTS
2. Petitioners are serving as Clerks/Ahlmads in Sessions Division at Hisar since 11.04.2007 and 15.06.2007 respectively. After getting permission from department, they completed their LL.B course in the years 2015 and 2014. Respondent No 2 had advertised 180 posts of Assistant District Attorney (Group B) on 9.5.2017, wherein following essential qualifications were laid down :-
Essential Qualifications for the post of Assistant District Attorney in Prosecution, Haryana
(i) Degree of Bachelor of Laws (Professional) of a recognized University.
(ii) Should have enrolled as an Advocate with Bar Council.
(iii) Hindi/Sanskrit upto Matric standard or higher.
ARGUMENTS
3. As per counsel for the petitioners in the said advertisement, no experience for an Advocate is required. It is further stated that Rule 49 of Bar Council of India Rules bars the Government servant from practising as an Advocate as long as he/she continues in such Government service. Due to said rule, petitioners did not enroll themselves with Bar Council. The advocate, who join Government service or private service or service on contract basis, has to surrender his/her sanad/licence. It is claimed by petitioners that since no experience was required, therefore, Notification No. GSR 23/Const./Art.309/2001, as applicable to Haryana State Prosecution Legal (Group B) Service Rules, 2001 (Annexure-P-1), so far as it lays down the condition of enrollment of the candidate with State Bar Council, is liable to be quashed being violative of Article 19 (1) (g) of Constitution of India. Petitioners also seeks direction for quashing the advertisement dated 9.5.2017 (Annexure-P-2), which restrains petitioners from participating in the selection process as they are not enrolled as an advocate with the Bar Council being a Government employee though being a law graduate from a recognized University/College.
It has also been argued that for the appointment of Civil Judge (Junior Division) no experience is required.
4. Per contra, learned counsel for the State opposed the present petition and submitted that they have merely advertised the posts as per the requisition. It is stated that relevant rules are in consonance with the requirement given in the advertisement. Therefore, there is no fault in the advertisement. It was stated that after appointment, the candidates become notified as Government Pleader/Public Prosecutor for appearance on behalf of Government before various Courts within the State of Haryana.
CONSIDERATION
5. We have heard learned counsel for parties and have also carefully gone through file.
Admittedly, the petitioners are in Government service and they want that since no experience is required for an advocate for appointment as an Assistant District Attorney in Prosecution Department of State, therefore, the condition in advertisement, requiring the enrollment with Bar Council as an advocate, should be quashed. We are not impressed with the said contention. The Assistant District Attorney is basically an advocate, who appears on behalf of Government to prosecute or defend the case for or on behalf of Government. The Assistant District Attorney thus has to practise in Court basically as an advocate though, on behalf of Government. The Advocates Act, 1961, allows only advocates to practise in the Courts.
Section 29 of Advocates Act, 1961, lays down as under :-
29. Advocates to be the only recognized class of persons entitled to practise law.-Subject to the provisions of this Act and any rules made there under, there shall, as from the appointed day, be only one cla
