Ameer Trading Corporation Ltd. Vs.
Shapoorji Data Processing Ltd [1960] INSC 264 (5 December 1960)
DAS, S.K.
SINHA, BHUVNESHWAR P.(CJ) GUPTA, K.C. DAS
AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.
CITATION: 1961 AIR 816 1961 SCR (2) 874
CITATOR INFO :
D 1966 SC1987 (17) D 1985 SC 308 (2,3)
ACT:
District Judges--Eligibility for
appointment--Appointment under the Constitution--Qualifications--Period of
Practice as Advocate, if includes Period of practice in Lahore High
Court---High Courts (Punjab) Order,1947, cl. 6--Bar Councils Act, 1926 (38 of
1926), s. 8--Constitution of India, Art. 233(2).
HEADNOTE:
The validity of the appointment of
respondents 2 to 6 as District judges was challenged in a petition filed by the
appellant under Art. 226 of the Constitution of India before the High Court of
Punjab, on the ground, inter alia, that the appointment was made in
contravention of Art. 233(2) of the Constitution of India which lays down that
"a person not already in the service of the Union or of the State shall
only be eligible to be appointed a district judge if he has been for not less
than seven years an advocate or a pleader..." The respondents had been
enrolled as advocates of the Lahore High Court on various dates between 1933 and
1940, and while respondents 2, 4 and 5 had their names on the roll of advocates
of the Punjab High Court and were practising as advocates at the time they were
appointed as District Judges in 1950 and 1952, respondents 3 and 6 did not have
their names factually on the roll when they were appointed as District judges
in 1957 and 1958. Respondent 6 had his name so enrolled after his appointment.
Under a notification dated September 28,
1948, ss. 3 to 16 of the Bar Councils Act, 1926, came into force in respect of
the East Punjab High Court, by virtue of which a Bar Council was constituted
and a roll of advocates had to be prepared and maintained by the High Court in
accordance with s. 8 of the Act. The proviso to sub-s. (2) of S. 8 of the Act
required them to deposit a fee of Rs. 10 payable to the Bar Council. The
appellant's contention was that after' the partition of the country, which led
to the establishment of a separate High Court for the province of East Punjab
the Punjab High Court was established only on August 15 1947, under the High
Courts (Punjab) Order, 1947, and as the respondents did not have seven years'
standing as advocates with reference to their right of practice in a court in
India after that date, they did not fulfill the requirements of Art. 233(2)
When they were appointed as District Judges and, therefore, their appointments
were constitutionally invalid. The question was whether the period of seven
years referred to in Art. 233(2) must be counted as the 875 standing of the
advocate or pleader with reference to his right of practice in a court in the
territory of India as defined in Art. of the Constitution, or whether any right
of practice in a court Rat, which was in India before the partition of the
country in 1947 but which was not in India since partition, could also be taken
into consideration for the purpose of counting the period of seven years.
Held, that under cl. (6) of the High Courts
(Punjab) Order, 1947, read with s. 8(3) of the Bar Councils Act, 1926, an
advocate of the Punjab High Court was entitled to count the period of his
practice in the Lahore High Court for determining his standing at the Bar.
Accordingly as respondents 2, 4 and 5 continued to be advocates of the Punjab
High Court when they were appointed as District judges and had a standing of
more than seven years when so appointed, they fulfilled the requirements of
Art. 233(2) of the Constitution.
Held, further, that the effect of cl. (6) of
the High Courts (Punjab) Order, 1947, and s. 8(2)(a) of the Bar Councils Act,
1926, was that from August 15, 1947, to September 28, 1948, advocates who had
been enrolled as advocates of the Lahore High Court were recognised as
advocates entitled to practice in the Punjab High Court, and after September
28, 1948, they automatically came on the roll of advocates of the Punjab High
Court, but had to pay a fee of Rs. 10 to the Bar Council. Consequently,
respondents 3 and 6 who did not cease to be advocates at any time or stage
after August 15, 1947, continued to be advocates of the Punjab High Court till
they were appointed as District judges and had the necessary standing of seven
years to be eligible under Art.
233(2) of the Constitution.
CIVIL APPELLATE JURISDICTION. Civil Appeal
No. 438 of 1960.
Appeal by special leave from the judgment
dated September 21, 1959, of the Punjab High Court, Chandigarh, in Civil Writ
No. 1050 of 1959.
A.S. B. Chari, M. S. K. Sastri and K. L.
Mehta, for the appellant.
S.M. Sikri, Advocate General.for the Punjab,
N. S. Bindra, K. L. Arora and D. Gupta for the respondent No. 1.
Gurbachan Singh. Tirth Singh Munjral and R.
H. Dhebar, for respondents Nos. 2, 3 and 5.
A. V. Viswanatha Sastri, R. Ganapathy Iyer
and D. Gupta, for respondents Nos. 4 and 6.
H. N. Sanyal, Additional Solicitor-General of
India, and D. Gupta, for the Intervener, (Union of India).
876 M. K. Nambiyar, M. S. K. Sastri and K. L.
Mehta, for the Interveners (Om Dutt Sharma and B. D. Pathak).
1960. December 5. The Judgment of the Court
was delivered by S. leave K. DAS, J.-This is an appeal by special from an order
of the High Court of Punjab dated September 21, 1959, by which it summarily
dismissed& petition made by the present appellant under Art. 226 of the
Constitution for certain relief,% in respect of five persons, two of whom are
now working as Additional Judges of the Punjab High Court, the third as
Officiating Judge of the same Court, the fourth as District and Sessions Judge,
Delhi, and the fifth as Registrar, Punjab High Court, Chandigarh. Shorn of
details which are not material, the case of the appellant was and is that the
aforesaid five persons, now respondents 2 to 6 before us, were not qualified to
be appointed as District Judges under Art. 233 of the Constitution at the time
when they were so appointed by the State Government, now respondent 1 before
us, and, therefore, their appointment as such was constitutionally invalid; and
the appellant claimed by way of his main relief that a writ in the nature of a
writ of quo warranto should issue "ousting them from their office and
restraining them from exercising the powers, duties and functions of the posts
they are holding and from claiming any rights, privileges or emoluments
attached to their office." Certain other subsidiary or ancillary reliefs
were, also claimed details whereof need not now be stated, We have stated that
the petition was summarily dismissed by the High Court. An application for a
certificate of fitness having failed in the High Court, the appellant asked for
and obtained special leave from this Court. on August 19, 1960.
The appeal has been contested by the State of
Punjab, respondent 1, and the other respondents of whom Shamsher Bahadur,
Harbans Singh and Gurdev Singh are Justices of the Punjab High Court, Hans Raj
Khanna is District and Sessions Judge, Delhi, 877 and P. R. Sawhney is
Registrar of the High Court. These respondents have filed separate affidavits
in reply, and some of them have been separately represented and heard.
The Advocate-General of Punjab has appeared
and contested the appeal on behalf of respondent 1. The Union of India was
originally a party-respondent to the petition inasmuch as the appellant had
initially impugned the appointment of two of the respondents as High Court
Judges; this relief was, however, given up during the pendency of the special
leave petition and on an application made by the appellant, the name of the
Union of India was struck off by an order dated March 18, 1960, leaving the
matter in dispute limited to the question of the validity of the initial
appointment of respondents 2 to 6 as District Judges only. Later, the Union of
India made an application to intervene in the appeal and in view of the
circumstance that a question of the interpretation of Art. 233 of Constitution
arises in the appeal, we have allowed the application and heard the learned
Additional Solicitor-General, even though the Union of India did not appear at
an earlier stage to contest the application which the appellant had made, to
expunge it from the category of respondents.
The other persons B. D. Pathak and Om Dutt
Sharma had also filed a writ petition in the Punjab High Court challenging the
legality of the appointment of P. R. Sawhney who, it appears, had acquitted
certain persons in three criminal appeals decided by him on January 22, 1959,
as Additional District and Sessions Judge, Delhi, from the decision of a
magistrate of Delhi in a case in which B. D. Pathak and Om Dutt Sharma said
that they had been assaulted by the persons accused in the case. They filed
three revision petitions in respect of the orders passed, which are pending in
the High Court. In view of these circumstances they have also been allowed to
intervene in the present appeal in so far as it relates to the appointment of
P. R. Sawhney, and we have heard learned Counsel on their behalf.
878 On behalf of the respondents who are no
longer working as District Judges a preliminary objection has been taken to the
maintainability of the appeal. It has been contended that the appeal is now
limited to the question of their appointment as District Judges and as they are
no longer holding the office of District Judge, the prayer for the issue of a
writ of quo warranto in respect of that office is no longer maintainable. On
behalf of the appellant it has been submitted in reply that respondents 2 to 4
are not permanent Judges of the High Court so that if and when they revert,
they must go back to their substantive posts of District Judges; therefore, the
question whether they were validly appointed to their substantive posts is a live
issue and the appellant is entitled to ask this Court to pronounce on that
issue. The learned Advocate-General has submitted that the State is anxious to
have the decision of this Court on the legality of the appointments made in
order to avoid future trouble and the State does not wish to raise any
preliminary objection to the determination of the question in issue. On a
careful consideration of the matter, we have come to the conclusion that the
preliminary objection must be overruled and in the circumstances of this case,
this Court must decide on the legality of the impugned appointments.
It would facilitate appreciation of the
points in controversy if we state first, in broad outline, the circumstances in
which respondents 2 to 6 were appointed as District Judges.
(1)..Respondent 2 Shamshere Bahadur, J.) was
called to the Bar in England on January 26, 1933, by the Middle Temple.
He was enrolled as an Advocate of the Lahore
High Court on May 15, 1933, and practised as such in that Court. On February 9,
1949, he was enrolled as an Advocate of the Federal Court of India. On and
after August 15, 1947, he practised as an Advocate of the East Punjab High
Court till he was appointed as District and Sessions Judge on March 20,1950.
Then he functioned as Legal Remembrancer of the State Government from December
1953 to May 1959, when, he was appointed as an Additional Judge of the Punjab
High Court.
879 (2)..Respondent 3 (Harbans Singh, J.) was
also called to the Bar and then enrolled as an Advocate of the Lahore High
Court on March 5, 1937. He worked as an Additional District and Sessions Judge,
s Ferozepore, from July 2, 1947 , to February 22, 1948. He then returned to
practice at Simla for a short while. On March 15, 1948, he worked as Deputy
Custodian, Evacuee Property, till April 17, 1950. On April 18, 1950, he was
appointed as District and Sessions Judge and on August 11, 1958, he was
appointed as an Additional Judge of the Punjab High Court.
(3)..Respondent 4 (Gurdev Singh, J.) was
enrolled as a Pleader of the Lahore High Court on October 25, 1934, and then as
an Advocate of the said Court on December 20, 1938.
He was enrolled as an Advocate of the Federal
Court of India on May 29, 1948, and was continuously in practice till he was
appointed as District and Sessions Judge on February 2.
1952. On July 11, 1960, he was appointed to
officiate as a Judge of the Punjab High Court.
(4)..Respondent 5 (Hans Raj Khanna) was
enrolled as a Pleader of the Lahore High Court on July 17, 1934, and then
enrolled as an Advocate of the said Court on December 20, 1940. He started his
practice as a lawyer at Amritsar and he continued his practice there till his
appointment as District and Sessions Judge. His name was borne on the Roll of
Advocates prepared by the East Punjab High Court when he was appointed as
District and Sessions Judge on February..1, 1952.
(5)..Respondent 6 (P. R. Sawhney) was called
to the Bar on November 17, 1930, and was enrolled as an Advocate of the Lahore
High Court on March 10, 1931. After partition he shifted to Delhi and worked
for sometime as Legal Adviser to the Custodian, Evacuee Property, Delhi. Then
lie practised for sometime at Delhi; he then accepted service under the
Ministry of Rehabilitation as an Officer on Special Duty and Administrator,
Rajpura Township. On March 30, 1949, he became the chairman, Jullundur
Improvement Trust. On May 6, 1949, he got his licence to practise as an
Advocate suspended. On 880 April 6, 1957, he was appointed as District and
Sessions Judge.
It would thus appear that of the five
respondents mentioned above, three, namely, Shamshere Bahadur, Gurudev Singh
and Hans Raj Khanna had their names on the Roll of Advocates of the Punjab High
Court before they were appointed as District Judges. In other words, they were practising
as Advocates at the time they were so appointed. Two of them, Harbans Singh and
P. R. Sawhney, did not have their names factually on the Roll when they were
appointed as District Judges. P.
R. Sawhney it appears, had his name so
enrolled on October 20, 1959, that is, after his appointment as District Judge.
We are inviting attention to this distinction
amongst the respondents at this stage. because as will appear later this
distinction has some bearing on one of the arguments made before us on behalf
of the appellant.
We proceed now to a consideration of the main
contention urged on behalf of. the appellant, namely, that the appointment of
respondents 2 to 6 as District Judges was made in contravention of the
provisions of. Art. 233 of the Constitution. It is convenient to read here Art.
233 of the Constitution:
"Art. 233(1). Appointments of persons to
be, and the posting and promotion of, district judges in any State shall be
made by the Governor of the State in consultation with the High Court
exercising jurisdiction in relation to such State.
(2)..A person not already in the service of
the Union or of the State shall only be eligible to be appointed a district
judge if he has been for not less than seven years an advocate or, a pleader
and is recommended by the High Court for appointment." Now, the argument
of learned Counsel for the appellant has ranged over a wide field; but the
point for decision is a narrow one and depends on whether respondents 2 to 6
fulfilled the requirements of el. (2) of Art. 233 of the Constitution when they
were appointed as District Judges by respondent 1. That clause lays down that a
person not already in the service of the Union or of the State shall only be
eligible to be 881 appointed a district judge if (1) he has been for not less
than seven years an advocate or a pleader and (2) is recommended by the High
Court for appointment. As to the second requirement no question arises here,
because admittedly respondents 2 to 6 were recommended by the High Court before
their appointment. The dispute is with regard to the first requirement. Learned
Counsel for the appellant has contended that respondents 2 to 6 did not fulfill
the requirement of having been " seven years an advocate or pleader"
and has put his argument in support of his contention in the following way.
Firstly, he has submitted that the expression "advocate or pleader"
is an expression of legal import and must be given its generally accepted
meaning at the time the Constitution was adopted; and that expression according
to learned Counsel means an advocate or pleader entitled to appear and plead
for another in a Court in India, but does not include an advocate or pleader of
a foreign Court; for this submission he has relied on the definition of the
expression "legal practitioners" in the Legal Practitioners Act, 1879
(XVIII of 1879); of "pleader" in the Civil Procedure Code, 1908 (Act
V of 1908); and of "advocate" in the Bar Councils Act, 1926 (XXXVIII
of 1926).
Secondly, he has submitted that by reason of the
use of the present perfect tense "has been" in cl. (2) of Art. 233,
the rules of grammar require that the person eligible for appointment must not
only have been an advocate or pleader before but must be an advocate or pleader
at the time he is appointed to the office of District Judge. Thirdly, he has
submitted that the period of seven years referred to in the clause must be
counted as the standing of the advocate or pleader with reference to his right
of practice in s Court, in the territory of India as defined in Art. 1 of the
Constitution; in other words, any right of practice in a Court which was in
India before the partition of the country in 1947 but which is not in India
since partition, cannot be taken into consideration for the purpose of counting
the period of seven years.
We shall presently consider these submissions
in so 882 far as they bear on the problem before us. But before we do so, it is
necessary to explain the changes which took place after the partition of the
country and led to the establishment of a High Court of Judicature for the
province of East Punjab (now called the Punjab High Court for the State of
Punjab) and how those changes affected the position of advocates or pleaders
who had the right to practice in the Lahore High Court of undivided Punjab. The
Independence Act, 1947, brought into existence two independent DominionsIndia
and Pakistan-and s. 9 thereof gave the GovernorGeneral power to make orders
inter alia for bringing the provisions of the Act into effective operation. In
exercise of that power the Governor-General made the High Courts (Punjab)
Order, 1947, which established as from the appointed day (August 15, 1947) a
High Court of Judicature for the then Province of East Punjab. Clause 6 of the
Order is important and must be quoted in full:
"6(1) The High Court of East Punjab
shall have the like powers to approve, admit, enrol, remove and suspend
advocates, vakils and attorneys, and to make rules with respect to advocates,
vakils and attorneys as are, under the law in force immediately before the
appointed day, exercisable by the High Court at Lahore.
(2) The right of audience in the High Court
of East Punjab shall be regulated in accordance with the like principles as,
immediately before the appointed day, are in force with respect to the right of
audience in the High Court at Lahore:
Provided that, subject to any rule made or
direction given by the High Court of East Punjab in the exercise of the powers
conferred by this Article, any person who, immediately before the appointed
day, is an advocate, vakil or attorney entitled to practise in the High Court
at Lahore shall be recognised as an advocate, vakil or attorney entitled to
practise in the High Court of East Punjab." It is also necessary to notice
cl. 14 of the Order which states inter alia that "the provisions of this
Order shall have effect subject to any provision made on or 883 after the
appointed day with respect to............... the High Court of East Punjab by
any legislature or other..
authority having power to make such
provision." The points which we must emphasise here are (1) that under el.
6(2) the seniority of advocates in the new High Court as to their right of
audience was to be regulated by the principle in force in-the former High Court
and (2) that under the proviso to cl. 6 any person who before August 15, 1947,
was an advocate entitled to practise in the Lahore High Court was recognised as
an advocate entitled to practise in the High Court of East Punjab, subject to
any rule made or direction given by the High Court or any provision made by the
legislature or other authority having power to make such provision. The Bar
Councils Act, 1926, except for ss. 1, 2, 17,18 and 19 did not then apply to the
High Court of East Punjab. By a notification dated September 28, 1948, the
Governor of East Punjab directed that the provisions of ss.
3 to 16 of the said Act shall come into force
in respect of the East Punjab High Court with effect from that date.
Section 3 of the Act says that for every High
Court a Bar Council shall be constituted in the manner provided by the
provisions of the Act. Section 8 of the Act says (We are reading such portion
only as is relevant for our purpose):"S. 8(1) No person shall be entitled
as of right to practise in any High Court, unless his name is entered in the
roll of the advocates of the High Court maintained under this Act:
Provided that nothing in this sub-section
shall apply to any attorney of the High Court.:
(2)..The High Court shall prepare and
maintain a roll of advocates of the High Court in which shall be entered the
names of(a)..all persons who were, as advocates, vakils or pleaders, entitled
as of right to practise in the High Court immediately before the date on which
this section comes into force in respect thereof, and (b)..all other persons
who have been admitted to be advocates of the High Court under this Act:
Provided that such persons shall have paid in
884 respect of enrolment the stamp duty, if any, chargeable under the Indian
Stamp Act, 1899, and a fee, payable to the Bar Council, which shall be ten
rupees in the case of the persons referred to in clause (a), and in other cases
such amount as may be prescribed.
(3) Entries in the roll shall be made in the
order of seniority and such seniority shall be determined as follows, namely:(a)..all
such persons as are referred to in clause (a) of sub-section (2) shall be
entered first in the order in which they were respectively entitled to
seniority inter se immediately before the date on which this section comes into
force in respect of the High Court; and (b)..the seniority of any other person
admitted to be an advocate of the High Court under this Act after that date
shall be determined by the date of his admission or, if he is a barrister, by
the date of his admission or the date on which he was called to the Bar,
whichever date is earlier:
Provided that, for the purposes of clause
(b), the seniority of a person who before his admission to be an advocate was
entitled as of right to practise in another High Court shall be determined by
the date on which he became so entitled.
(4)..The respective rights of pre-audience of
advocates of the High Court shall be determined by seniority." It is not
very clear from the record before us when the Bar Council was actually
constituted for the Punjab High Court, but it was stated at the Bar that the
first election took place in 1950. But on January 13, 1949, the High Court made
certain rules under ss. 6 and 12 of the Act. Rule 2(1) of tile said rules was in
these terms:
"Rule 2(1). The Registrar shall classify
the advocates entered in the roll prepared under section 8, sub-section (2), of
the Indian Councils Act as follows:(a)..those who have or who on or before the
date of election of the members of the Bar Council of the High Court will have,
for not less than 10 years, been entitled as of right to practise in the High
Court;
885 (b)..those who other than those mentioned
in clause (a), are or who on or before the: date of the election of members of
the Bar Council of the High Court may become entitled to practise in the High
Court." We have, therefore two distinct periods to keep in mind.
The. first period in between August 15,1947,
to September 27,1948,when the main provisions of the Bar Councils Act, 1926,
were not in. force for the Punjab High Court and the right of advocates was
regulated by the, High Courts, (Punjab) Order, 1947. The second period was from
September 28, 1948 when the main provisions. of the Bar Councils Act wore
brought into force, rules were made there under, a Bar Council was constituted and
a roll of Advocates was prepared and maintained in accordance with a. 8 of the
said Act. It was in this second period that the Constitution of India came into
force on January 26, 1950.
This is the background against which we have
to consider the, argument of learned Counsel for the appellant., Even if we
assume without finally pronouncing on their correctness that learned Counsel is
right in his first two submissions, viz., that the word " advocate"
in cl. (2) of Art. 233 moans an advocate of a Court in India and the appointee
must be such an advocate at the time of his appointment, no objection on those
grounds can be raised to the appointment of three of the respondents who were
factually on the roll of Advocates of the Punjab High Court at. the time of
their appointment; because admittedly they were advocates in. a Court in India
and continued as such advocates the the dates of their appointment. The only,
question with regard to them is whether they can count. in the period of seven
years their period of practice in or under the Lahore High Court.
The answer to this question is clearly
furnished by cl. 6(2) of the High, Courts (Punjab) Order, 1947, read with s.
8(3) of the Bar Councils oils, Act, 1926. That clause lays down that the right
1 of audience in the High Court of East Punjab is all be regulated in 886
accordance with the principle in force in the Lahore High Court immediately
before the, appointed day. The relevant rule in the Lahore, High CourtRules
laid down that Advocates who are Barristers shall take precedence inter se
according to the date of,, call to the Bar; Advocates who are not' Barristers,
according to the dates when they became, entitled to practice in a High Court.
The same principle applied to the East Punjab High Court,' and an advocate of
the Lahore High Court who was recognised as an advocate entitled to practise in
the new High Court counted his seniority on the strength of his standing in the
Lahore High Court. He did not lose that seniority, which was preserved by the
Bar Councils Act, 1926. and we see no reasons why for the purpose of cl. (2) of
Art. 233 such an advocate should not have the same standing as he has in the
High Court where he is practising.
Learned Counsel for the appellant has also
drawn our attention to Explanation 1 to cl (3) of Art. 124, of the Constitution
relating to the qualifications for appointment as a Judge of the Supreme Court
and to the Explanation to cl. (2) of Art. 217 relating to the qualifications
for appointment as a Judge of a High Court, and has submitted that where the
Constitution-makers thought it necessary they specifically provided for
counting the period in a High Court which was formerly in India. Articles 124
and 217 are differently worded and refer to an additional qualification of
citizenship which is not a requirement of Art., 233, and we do not think that
el. (2) of Art. 233 can be interpreted in the light of Explanations added to
Arts. 124 and 217.
Article 233 is a self contained provision
regarding the appointment of District Judges. As to a person who is already in
the serve of the Union or of the State, no' special qualifications are laid
down and under el. (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 el.
(2) and all that is required is that he
should be an advocate or pleader of seven years' standing. The 887 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 Art.
233 which must lead to the exclusion of that
period for determining his eligibility for appointment as district judge.
What will be the result if the interpretation
canvassed for on behalf of the appellant is accepted ? Then, for seven years
beginning from August 15, 1947, no member of the Bar of the Punjab High Court
would be eligible for appointment as district judge a result which has only to
be stated to demonstrate the weakness of the argument. We have proceeded so far
on the first two submissions of learned Counsel for the appellant, and on that
basis dealt with his third submission. It is perhaps necessary to add that we
must not be understood to have decided that the expression 'has been' must
always mean what learned Counsel for the appellant says it means according to
the strict rules of grammar. 'It may be seriously questioned if an organic
Constitution must be so narrowly interpreted, and the learned Additional
Solicitor-General has drawn our attention to other Articles of the Constitution
like Art. 5(c) where in-the context the expression has a different meaning. Our
attention has also been drawn to the decision of the Allahabad High Court in
Mubarak Mazdoor v. K. K. Banerji (1) where a different meaning was given to a
similar expression occurring in the proviso to sub-s. (3) of s. 86 of the
Representation of the People Act, 1951. We consider it unnecessary to pursue
this matter further because the respondents. We are now considering continued
to be advocates of the Punjab High Court when they were appointed as district
judges and they had a standing of more than seven years when so appointed. They
were clearly eligible for appointment under cl. 2 of Art.
233 of the Constitution.
We now turn to the other two respondents
(Harbans Singh and P. R. Sawhney) whose names were not (1) A.I.R. 1958 All.
323.
888 factually on the roll of Advocates at the
time they were appointed as district judge& What is their position? We
consider that they also fulfilled' the requirements of Art.
233 of the Constitution. Harbans Singh was in
service of the State at the time of his appointment, and Mr.
Viswanantha Sastri appearing for him has
submitted that ;el. (2) of Art. 233 did not apply. We consider that even if we
proceed on the footing that both these persons were recruited from the Bar and
their appointment has to be tested by the requirements of el. (2), we must hold
that they fulfilled those requirements. They were Advocates enrolled in the
Lahore High Court; this is not disputed.
Under cl. 6 of the High Court’s (Punjab)
Order, 1947, they were recognised as Advocates entitled to practise in the
Punjab High Court till the Bar Councils Act, 1926, came into force. Under s. 8
(2)(a) of that Act it was the duty of the High Court to prepare and maintain a
roll of advocates in which their names should have been entered on the day on
which s 8 came into force, that is, on September 28, 1948.
The proviso to sub-s. (2) of s. 8 required
them to deposit a fee of Rs. 10 payable to the Bar Council. Obviously such
payment could hardly be made before the Bar Council was constituted. We do not
agree with learned Counsel for the appellant and the interveners (B. D. Pathak
and Om Dutt Sharma) that, the proviso had the effect of taking away the right
which these respondents had to come automatically on the roll of advocates
under s. 8(2)(a) of the Act. We consider that the combined effect of cl. 6 of
the High Courts (Punjab) Order, 1947, and s. 8(2)(a) of the Bar Councils Act
1926, was this: from August 18, 1947, to September 28,,1948, they were
recognised as Advocates entitled to practise in the. Punjab High Court and
after September 28, 1948, they automatically came on the roll of advocates of
the Punjab High Court but had to pay a fee of Rs. 10 to the Bar Council. They
did not cease to be advocates at any time or stage after August 15, 1947, and
the* continued to be advocates of the Punjab High Court till they were
appointed as District Judges. They also had the 889 necessary standing of seven
years to be eligible, under el.
(2) of Art. 233 of the Constitution.
These conclusions really dispose of the
appeal. We may state, however, that 'an alternative argument based on s. 4 of
the Legal Practitioners Act, 1879, was also presented before us on behalf of
these respondents. The argument was that the respondents having been enrolled
as advocates in the Lahore High Court were entitled to practise in any
subordinate Court in India, and that right was not taken away even after the
Lahore High Court ceased to be a High Court in the territory of India under the
Constitution. As we are resting our decision on conclusions drawn from the High
Courts (Punjab) Order, 1947, and s. 8 of the Bar Councils Act, 1926, we
consider it unnecessary to examine the alternative argument based on s. 4 of
the Legal Practitioners Act, 1879.
The appellant had devoted a large part of his
writ petition to support a contention that the appointment of the respondent
was bad, because it contravened certain statutory service Rules. It was stated
by the appellant that in the Punjab the judicial branch of superior
appointments consisted of 27 posts inclusive of eight listed posts; two out of
these eight listed posts were reserved for the members of the Bar and six for
members of the subordinate judicial service. On the partition of the Province,
it was stated, eleven superior judicial posts were allotted to East Punjab, and the number was later increased to twelve. Out of these twelve posts, the
appellant contended, one third was reserved for the members of the Bar, one third
for what was called the Provincial Civil Service (Judicial'Branch) and the rest
for recruitment from either of the aforesaid two sources on merit. The
grievance of the appellant is that, too many persons have been recruited from
the Bak to the detriment of the members of the service to which the appellant
belongs.
We asked learned Counsel for the appellant to
point out to us any particular statutory rule which has been contravened by
respondent 1 in making the appointments. Learned Counsel was unable to point
890 out any such statutory rule and except making a general grievance that too many
persons have been recruited from the Bar, he was unable even to substantiate
that the one-third reservation made in favour of the service members has been
violated. In any case, unless there is clear proof of a breach of a statutory
rule in making any of the appointments under consideration here, the point does
not merit any discussion. Such proof is singularly lacking in this case.
In the result, the appeal fails and is
dismissed with costs.
Appeal dismissed.
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