DEEPAK AGGARWAL versus KESHAV KAUSHIK AND OTHERS

Citation: [2013] 1 S.C.R. 402 · Decided: 21-01-2013 · Supreme Court of India · Bench: RAJENDRA MAL LODHA · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
c 
[2013] 1 S.C.R. 402 
DEEPAK AGGARWAL 
v. 
KESHAV KAUSHIK AND OTHERS 
(Civil Appeal No. 561 of 2013) 
JANUARY 21, 2013 
[R.M. LODHA, ANIL R. DAVE AND 
RANJAN GOGOi, JJ.] 
CONSTITUTION OF IND/A, 1950: 
Art. 233(2) - Appointment to the post of Additional District 
Judge through direct recruitment from Bar - Eligibility - Held: 
One of the essential requirements articulated by the 
expression "if he has been for not less than seven years an 
D advocate" in Art. 233(2) is that such person must with 
requisite period be continuing as an advocate on the date of 
application. 
Art. 233(2) - Expression 'advocate or pleader' - Held: 
Refers to legal practitioner and, thus, it means a person who 
E has a right to act and/or plead in court on behalf of his client 
-
For the purposes of Art. 233(2) both a Public Prosecutor 
and' an Assistant Public Prosecutor are covered by the 
expression 'advocate'- Rendering of service as a Public 
Prosecutor or as Assistant Public Prosecutor is deemed to 
F be practice as an advocate - Code of Civil Procedure, 1908 
- ss. 2 (7) and 2(15) ...:. 'Government pleader' - 'Pleader' -
Code of Criminal Procedure, 1973 - ss. 2(4) (as applicable 
in State of Haryana) 24 and 25 - Public Prosecutor -
Assistant Public Prosecutor - Bar Council of India Rules -
G rr. 43 and 49. 
Art. 233(2) - Appointment to the post of Additional District 
Judge through direct recruitment from Bar- Assistant District 
Attorney/Public Prosecutor/Deputy Advocate General -
H 
402 
DEEPAK AGGARWAL v. KESHAV KAUSHIK 
403 
Eligibility - Held: Since private appellants did not cease to A 
be advocate while working as Assistint District Attorney/Public 
Prosecutor/Deputy Advocate General, the period during which 
they have been working as such has to be considered as the 
period practicing law - Thus, all of them have been advocates 
for not less than seven years and were enrolled as advocates B 
and were continuing as advocates on the date of the 
application - They fulfilled the eligibility under Art. 233 (2) of 
the Constitution and r. 11 of the HSJS Rules on the date of 
application - Haryana Superior Judicial Service Rules, 2007 
- rr. 5(ii) and 11. 
c 
Art. 233 (2) - Expression "the service" occurring in Art. 
233(2) means 'judicial service" -
Other members of the 
service of Union or State are excluded because Art. 233 
contemplates only two sources from which District Judges can 
be appointed: (i) judicial service; and (ii) the advocate/pleader D 
or in other words from Bar. 
The five private appellants, while working as 
Assistant District Attorney/Public Prosecutor/Deputy 
Advocate General, were selected through direct E 
recruitment to the post of Additional District and Sessions 
Judge in the Haryana Superior Judicial Service (HSJS). 
However, the High Court, in writ petition quashed their 
selection holding that they did not have the requisite 
criteria to qualify for the recruitment as contemplated in 
F 
Art. 233 of the Constitution of India and that except 
appellant 'RM', the other appellants did not have requisite 
experience. 
In the instant appeals filed by the five candidates and 
the High Court on administrative side, the questions for G 
consideration before the Court were: (i) What is meant by 
Advocate' or 'pleader' under Art. 233(2)"? (ii) Whether a 
District Attorney/Additional District Attorney/Public 
Prosecutor/Assistant Public Prosecutor/ Assistant 
Advocate General, who is full time employee of the H 
404 
SUPREME COURT REPORTS 
[2013) 1 S.C.R. 
A Government and governed and regulated by the statutory 
rules of the State and is selected by direct recruitment 
through the Public Service Commission, is eligible for 
appointment to the post of District Judge under Article 
233(2) of the Constitution?" (iii) "What is the meaning of 
B the expression "the service" under Article 233(2) of the 
Constitution"? 
Allowing the appeals, the Court 
HELD: 1.1. Clause (2) of Art. 233 of the Constitution 
C of India, 1950 lays down three essentials for appointment 
of a person to the post of District Judge; (i) a person shall 
not be in service of the Union or of the State; (ii) he has 
been for r.ot less than seven years an advocate or a 
pleader; and (iii) his name is recommended by the 
D relevant High Court for appointment. Thus, as regards a 
person not already in service what is required is that he 
should be an advocate or pleader of seven years' 
standing and that his name is recommended by the High 

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