SUSHMA SURI ETC. ETC. versus GOVT. OF NATIONAL CAPITAL TERRITORY OF DELHI AND ANR.

Citation: [1998] SUPP. 2 S.C.R. 187 · Decided: 08-10-1998 · Supreme Court of India · Bench: M.M. PUNCHHI · Disposal: Disposed off

Judgment (excerpt)

SUSHMA SURI ETC. ETC. 
v. 
GOVT. OF NATIONAL CAPITAL TERRITORY OF 
DELHI AND ANR. 
OCTOBER 8, 1998 
[M.M. PUNCHHI, CJ., K.T. THOMAS AND 
S. RAJENDRA BABU, JJ.] 
A 
B 
Constitution of India, 1950: Article 233(2).,.-Delhi Higher Judicial 
Service-Appointment of-Eligibility-Officers from Delhi Judicial Service C 
or Advocate Pleader of not less than seven years standing-Public prosecutor/ 
Government Counsels/Standing Counsels of Corporation or Authority-Acting 
or pleading in the Courts on behalf of employers-Held, he is an advocate 
for the purpose of Article 233(2)-Thus entitled to be considered for 
appointment to Delhi Higher Judicial Service-Advocates Act, 1961; Section D 
2(a)-Bar Council of India Rules: Rule 9. 
Service Law-Additional Government Advocate-More than seven years 
standing as an Advocate-Engaged in acting/pleading in Court---Non-
consideration for appointment to Delhi Higher Judicial Service-On 
challenge, writ petition dismissed by High Court-On appeal, held, eligible E 
for consideration-However, as the recruitment process is completed and 
sefacted candidates are already appointed, appellant not entitled to any 
relief-Direction for following the procedure laid down, in pending and 
future recruitments-Delhi Higher Judicial Service Rules, 1970: Rules 5 and 
7. 
Words & Phrases: 
'Advocate '-Meaning of in the context of Rule 49 of Bar Council of 
India Rules. 
F 
'From the Bar '-Meaning of in the context of Rule 7 of Delhi Higher G 
Judicial Service Rules, 1970. 
Appellant was working as Additional Government Advocate in the 
Supreme Court of India. In response to an advertisement issued by Delhi 
High Court, she applied for appointment to the Delhi Higher Judicial Service. 
The candidates for appointment to Delhi Higher Judicial Service should be H 
187 
188 
SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R. 
A either an officer in Delhi Judicial Service or an advocate or pleader of not 
less than seven years standing. When appellant was not called for interview, 
she filed a writ petition. The High Court relying upon the judgment in Oma 
Shanker Sharma 's case* held that she was not entitled to be considered for 
appointment as she ceased to be an Advocate for the purpose of Article 
B 233(2) of the Constitution. Hence the present appeals. 
c 
The contention of the appellant was that she had more than seven years 
experience as an Advocate and therefore was fully eligible to be appointed 
to the Higher Judicial Service and High Court was not justified in not 
considering her case for appointment. 
Disposing of the appeals, this Court 
HELD : 1.1. An advocate is a person who acts or pleads for another in 
a Court and if a Public prosecutor or a Government Counsel is on the rolls 
of the Bar Council and is entitled to practise under the Advocates Act, 1961, 
D he answers the description of the Advocate. Thus High Court was not justified 
in holding that appellant is not entitled to be considered for appointment. 
[193-D; 194-E) 
1.2. Under Rule 49 of the Bar Council of India Rules, an Advocate shall 
not be a full time employee of any person, Government, Firm, Corporation 
E or concern and on taking up such employment shall intimate such fact to 
the concerned Bar Council and shall cease to practise as long as he is in 
such employment. However, an exception is made in such cases to Law 
Officers of the Government and Corporate bodies despite his being a full 
time salaried employee such Law Officer is required to act or plead in Court 
on behalf of others. It is only to those who fall into other categories of 
-p employment that the bar under Rule 49 would apply. An advocate employed 
by the Government or a Body Corporate as its Law Officer even on terms 
of payment of salary would not cease to be an Advocate in terms of Rule 49 
if the condition is that such Advocate is required to act or plead in Courts 
on behalf of the employer. The test, therefore, is not whether such person 
G is engaged on terms of salary or by payment of remuneration, but whether 
he is engaged to act or plead on its behalf in a Court of Law as an Advocate. 
If he is not acting or pleading on behalf of his employer, then he ceases to 
be an Advocate. Therefore, Bar Council oflndia has understood the expression 
'Advocate' as one who is actually practising before Courts which expression 
would include even those who are law officers appointed as such by the 
H Government or body corporate. (193-E-F-G-H; 194-A-B) 
SUSHMA SURI ETC

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