RAMESHWAR DAYAL versus THE STATE OF PUNJAB AND OTHERS

Citation: [1961] 2 S.C.R. 874 · Decided: 05-12-1960 · Supreme Court of India · Bench: BHUVNESHWAR PRASAD SINHA · Disposal: Dismissed
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Judgment (excerpt)

De&emb~r 5. 
874 
SUPREME COURT REPORTS 
RAMESHWAR DAYAL 
v. 
[1961] 
THE STATE OF PUNJAB AND OTHERS 
(B. P. SINHA, c. J., s. K. DAS, K. c. DAS GUPTA, 
N. RAJAGOPALA AYYANGAR and 
J. R. MUDHOLKAR, JJ.) 
District Judges-Eligibility for appointment-Appointment 
under the Constitution-Qualifications-Period of practice as Advo· 
cate, if includes period of practice in Lahore High Court-High 
Courts (Punjab) Order, r947, cl. 6-Bar Councils Act, 1926 (38 of 
r926), s. 8-Constitution of India, Art. 233(2). 
The validitji' of the appointment of respondents 2 to 6 as 
District Judges was challenged in a petition filed by the appel-
lant under Art. 226 of the Constitution of India before the High 
Court of Punjab, on the ground, inter a!ia, that the appointment 
was made in contravention of Art. 233(2) of the Constitntion 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 appoint-
ed 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 appoint-
ed 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 Conrt 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 Conrt 
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 fulfil 
the requirements of Art. 233(2) when they were appointed as 
District Judges and, therefore, their appointments were con-
stitntionally invalid. The question was whether the period of 
seven years referred to in Art. 233(2) must be counted as the 
2 S.C.R. SUPREME COURT REPORTS 
875 
standing of the advocate or pleader with reference to his right 
1960 
of practice in a court in the territory of India as defined in Art. 
I of the Constitution, or whether any right of practice in a court Rameshwar Dayal 
- which was in India before the partition of the country in 1947 
v. 
but which was not in India since partition, could also be taken State of Punjab 
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 advo-
cate 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 con-
tinued 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 require-
ments 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 automati-
cally came on the roll of advocates of the Punjab High Court, 
but had to pay a fee of Rs. 10 to the Bar Council. Consequent-
ly, respondents 3 and 6 who did not cease to be advocates at 
any time or stage after August 15, 1947, continued to be advoca-
tes of the Punjab High Court till they were appointed as Dis-
trict Judges and had the necessary standing of seven years to be 
. eligible under
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