Hon'ble Shri Arun Mishra, CJ - (1.) THE controversy involved in these writ applications is squarely covered by the decision rendered by the Division Bench of this Court at Jaipur Bench, Jaipur in D.B. Civil Writ Petition No. 882/2012 Pawan Kumar Vashistha V/s High Court of Judicature for Rajasthan Jodhpur and anr. (decided on 21.2.2012 alongwith 19 other connected matters). The said decision rendered in the case of Pawan Kumar Vashistha (supra) is quoted below: - The question posed for consideration in the writ petitions is whether full time salaried employees, Assistant Public Prosecutors are entitled to count the period, which they have spent as Assistant Public Prosecutor, towards seven years experience or in other words, they can be treated to be an Advocate for the purpose of appointment by direct recruitment to the post of District Judge, as provided under Article 233(2) of the Constitution of India. It is submitted by the petitioners that they have been enrolled as advocate by the Bar Council of Rajasthan; thereby they started practicing as advocate and their names have been mentioned on the rolls of Bar Council of Rajasthan. They were appointed after their due selections by the Rajasthan Public Service Commission as Assistant Public Prosecutor. Since then petitioners have been working as Assistant Public Prosecutor Grade -II in different Courts in the State of Rajasthan. They are appearing in criminal Courts and contesting cases on behalf of the State of Rajasthan as Assistant Public Prosecutor, as contemplated under Section 25 of the Code of Criminal Procedure, 1973. The work of the petitioners, inter -alia, includes the job of arguing the cases in the Courts of Magistrates.
(2.) THE High Court of Rajasthan issued a Notification dated 19.07.2011 inviting applications from the advocates for filling up the vacant posts in the cadre of District Judge by direct recruitment in the Rajasthan Judicial Service in accordance with the provisions of the Rajasthan Judicial Service Rules, 2010 (for short 'the RJS Rules, 2010'), as amended in the year 2011. Pursuant to the said notification, the petitioners submitted applications, however, their applications have been disallowed under Rule 33 of the RJS Rules, 2010. It appears that applications have been disallowed in view of the fact that High Court has not treated the Assistant Public Prosecutors as an advocate. The District Judge has also not issued experience certificate on the basis that Assistant Public Prosecutors are not treated as an advocate. The petitioners further submitted that decision disallowing their application is contrary to the provisions contained in Article 233(2) of the Constitution of India, which provides that only judicial services are excluded, not other services. They have placed reliance on the decision of the Hon'ble Apex Court in Sushma Suri Vs. Govt. of National Capital Territory of Delhi And Another : (1999) 1 SCC 330, and submitted that rejection of applications is illegal. It was further submitted that other High Courts have also taken a view that Assistant Public Prosecutors are entitled to appear in the examination and to stake their claim. Thus, the decision of rejecting applications of the petitioners is discriminatory, arbitrary and illegal. Hence, the writ applications have been filed with the prayer to direct the respondents to accept the application forms and to consider the candidature of petitioners for the post of District Judge, to be filled by way of direct recruitment.
(3.) THE Bar Council of Rajasthan has filed reply and relying upon Rule 49 contained in Section VII, Chapter -II, Part VI of the Bar Council of India Rules (hereinafter referred to as 'the Rules'), it is contended that Bar Council of India in its meeting held on 22.06.2001, passed a resolution, whereby Second and Third paras of Rule 49 of the Rules providing for enrolment of Law Officers were deleted in consultation with various State Bar Councils. The resolution was also sent for information and compliance to all State Bar Councils. The Bar Council of India has passed a resolution that Law Officers, who have been allowed to practice on behalf of their employers, will cease to practise. The communication by Bar Council of India has been placed on record as Annexure R -2/2 to the reply. It is further contended by Bar Council of Rajasthan that for resumption of practise as advocate, various applications were submitted by the APP I and APP II in the Office of the Bar Council of Rajasthan. The Enrolment Committee of the Bar Council of Rajasthan vide order dated 29.06.2003, held that they are not entitled to get the resumption of practise as advocate and accordingly, the applications submitted by 27 candidates were rejected. The Enrolment Committee of Bar Council of Rajasthan also observed that several Public Prosecutors have not suspended their practice and they are still continuing in the job and directed the Office to find out such persons, who had been enrolled as advocate and thereafter joined the service. It was further directed that notices may be given to them for suspension of their practice as advocate immediately because when they have joined service, their names cannot continue on the rolls of the State Bar Council. A copy of the order dated 29.06.2003 passed by the Enrolment Committee of the Bar Council of Rajasthan has been placed on record along with the reply as Annexure R - 2/3. The Bar Council of India has affirmed the said decision in its meeting dated 6th and 7th November, 2004 and accepted the order passed by the Enrolment Committee of the Bar Council of Rajasthan. It is further contended that Bar Council of India is empowered to exercise general supervision and control over the State Bar Councils. Section 48B of the Advocates Act, 1961 (for short 'the Act of 1961') empowers the Bar Council of India to give such directions to the State Bar Council or any committee thereof in exercise of its powers of general supervision and control for the proper and efficient discharge of the functions of a State Bar Council or any Committee thereof. The State Bar Council or the Committee is bound to comply with such directions issued by the Bar Council of India. It is also contended that the State Bar Council of Rajasthan has followed the amendments made by the Bar Council of India vide its resolution passed in the meeting dated 22.06.2001. Thus, the Law Officers are not enrolled by the Bar Council of Rajasthan. The High Court of Rajasthan has also contested the matter and opposed the writ applications. Mr. S.P. Sharma, Senior Counsel assisted by Mr. S.S. Shekhawat, Mr. Rajendra Prasad with Mr. Madhusudan Shiromani Sharma, Mr. Rakesh Kumar, Mr. Praveen Balwada with Mr. Mamraj Jat, Mr. Deepak Soni, Mr. Chotu Lal, Mr. Poonam Chand Bhandari, Mr. Ashwani Chobisa, Mr. Anil Upman and Mr. Prakash Thakuriya, learned counsel appearing on behalf of petitioners have submitted that since provision has been made in the rules for enrolment framed in 1965 by the Bar Council of Rajasthan i.e. Rules For Admission And Enrolment Of Advocates On The Roll Of The Bar Council of Rajasthan (1965) enabling the Law Officers to have enrolment and the rule has not been deleted, as such it prevails and the Law Officers, who are in services of the State Government or Central Government, cannot be deprived of opportunity to stake their claim as against the post of District Judge. They have also submitted that decision in Sushma Suri's case (supra), is clear and protects the rights of the petitioners to be recognised as advocate and they are practising in the Courts as they have been appointed under Section 25 of the Code of Criminal Procedure and by the terms of their appointment, they are entitled to practise before the Courts of Judicial Magistrates. Hence, rejection of candidature of petitioners was not justified. They have relied upon the decisions of the Apex Court in the case of Sushma Suri (supra), (Dr.) Haniraj L. Chulani Vs. Bar Council of Maharashtra & Goa, : AIR 1996 SC 1708, Indian Council of Legal Aid and Advice etc. etc. Vs. Bar Council of India and another, : AIR 1995 SC 691 and Satya Narain Singh etc. Vs. The High Court of Judicature at Allahabad and others, etc., : AIR 1985 SC 308, decision of High Court of Madhya Pradesh in Jyoti Gupta Vs. Registrar General, High Court of M.P., Jabalpur and another, : 2008 (2) M.P.L.J. 486, decision of the Bombay High Court in Sunanda W/o Bhimrao Chaware and Ors. Vs. The High Court of Judicature at Bombay through its Registrar General, : 2011(5) BomCR 85: 2011(113) BomLR 2848, which matter has been referred to the Larger Bench and the decision of High Court of Madras in K. Appadurai S/o. P. Kandavel and Ors. etc. etc. Vs. The Secretary to Government, Public (Special. A) Department, Government of Tamil Nadu and The Principal Secretary to Government, Social Welfare and Noon Meal Project (SW4) Department, Government of Tamil Nadu and Ors. etc. etc., W.P. Nos. 16383 and 18451 of 2010, decided on 26.08.2010. They have further relied upon the interim order of the Single Bench of Jharkhand High Court dated 17.06.2011 passed in W.P.(S) Nos. 3193/2011, 3179/2011 and 3228/2011. It was also submitted that there are few cases in which incumbents have completed their seven years standing as advocate before entering into the service of A.P.P and thus they cannot be ousted and have to be treated as an advocate, particularly in view of provisions of Section 25 of the Code of Criminal Procedure.;