IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTYFOURTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT HON'BLE THE CHIEF JUSTICE SRI ANIL R. DAVE AND HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.23931 of 2008 Between: T. Kumar Babu, S/o. late T. Lazarus, R/o. H.No.5-10-43, Fathe Maidan, Hyderabad. ...Petitioner And 1. Union of India, represented by its Secretary to the Hon'ble President of India, New Delhi. 2. Government of Andhra Pradesh, represented by its Secretary to the Hon'ble Governor of Andhra Pradesh, Hyderabad. 3. High Court of Andhra Pradesh, represented by its Registrar General (Administration), High Court Buildings, Hyderabad. 4. Justice B. Seshashayana Reddy, Judge of High Court of Andrha Pradesh, Hyderabad. ...Respondents Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed herein the High Court will be pleased to issue an appropriate Writ Order or Direction more particularly one in the nature of Writ of Quo-Warranto, declaring the appointment of the Respondent No. 4 as a District & Sessions Judge, Grade-II in the year 1990, as illegal, arbitrary and violative of Article 233(2) of the Constitution of India and Rule 49 of the Bar Council of India Rules and consequently direct the Respondent No. 4 to quit the office of the Judge of High Court of Andhra Pradesh, which is a benefit obtained by him by virtue his appointment as a District & Sessions Judge, Grade-II as he is not entitled to hold the same. Counsel for the petitioner : Sri T. Kumar Babu, Petitioner in person Counsel for respondent No.1 : Sri A. Rajasekhar Reddy Assistant Solicitor General. Counsel for respondent No.2 : None Counsel for respondent No.3 : Smt. M. Bhaskara Lakshmi Counsel for respondent No.4 : None The Court made the following: ORDER: (Per Sri Anil R. Dave, C.J.) 1. The petitioner, who is a practising Advocate, has challenged the validity of appointment of respondent No.4 as a Judge of the High Court of Andhra Pradesh by way of this petition. 2. The petitioner has appeared in person and has submitted that respondent No.4 was appointed as a District & Sessions Judge, Grade-II in 1990 and thereafter he was elevated as an Additional Judge of the High Court of Andhra Pradesh in 2002 and subsequently, he became permanent Judge of the High Court in 2004. 3. According to the petitioner, the appointment of respondent No.4 as District & Sessions Judge, Grade-II in 1990 was bad in law for the reason that respondent No.4 was working as a Law Officer in Andhra Bank, and according to the provisions of Article 233(2) of the Constitution of India and Rule 49 of the Bar Council of India Rules, respondent No.4 could not have been appointed as a District & Sessions Judge, Grade-II in 1990. It has been further submitted that respondent No.4 was appointed as a Judge of the High Court only because he was a District & Sessions Judge and as his appointment as District & Sessions Judge was bad in law, even his appointment as a Judge of this Court is also bad in law. He has, therefore, impliedly prayed that the appointment of respondent No.4 as a Judge of this Court be quashed and set aside. 4. The petitioner has relied upon Article 233(2) of the Constitution of India, which reads as under: “ 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.” Rule 49 of the Bar Council of India Rules reads as under: “An advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practise, and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears and shall thereupon cease to practise as an advocate so long as he continues in such employment.” 5. According to the petitioner, as respondent No.4 was serving as a Law Officer in Andhra Bank and his service in Andhra Bank can neither be considered as service under Union of India or State Government and as respondent No.4 was not in actual practice at the time of his appointment, he could not have been appointed as per the provisions of Article 233(2) of the Constitution of India. 6. Thereafter, it has been submitted by him that according to Rule 49 of the Bar Council of India Rules, if an Advocate leaves the practice and takes up any employment, he cannot be considered as an Advocate and according to the said rule, as respondent No.4 was not an Advocate at the time of his appointment, the initial appointment of respondent No.4 was bad in law. 7. On the other hand, it has been submitted by the learned Assistant Solicitor General, Sri A. Rajasekhar Reddy appearing for Union of India and Mrs. M. Bhaskara Lakshmi, learned Advocate appearing for respondent No.3, that the appointment of respondent No.4 to the post of District & Sessions Judge was just and proper. It has been further submitted by them that in Writ Petition No.9209 of 1989, the validity of appointment of respondent No.4 as District & Sessions Judge had been challenged. After hearing the learned Advocates, a Division Bench of this Court had rejected the petition on 24th July, 1992. Our attention has been drawn to the afore-stated judgment and it has been submitted that as the issue with regard to appointment of respondent No.4 as District & Sessions Judge had already been decided, this Court need not go into it again and it was also submitted by the learned Advocate that the petition was filed with some oblique motive and, therefore, it should be dismissed. 8. Upon hearing the learned Advocates and looking to the facts of the case and more particularly, in view of the judgment delivered in Writ Petition No.9209 of 1989 by this Court, in our opinion, the appointment of respondent No.4 to the post of District & Sessions Judge was just and proper and, therefore, even his elevation to the post of Judge of this Court cannot be said to be improper. 9. The Division Bench of this Court had elaborately discussed the issue in Writ Petition No.9209 of 1989 and by relying upon the judgment delivered in the case of Rameshwar Dayal v. State of Punjab[1], the Division Bench came to the conclusion that the appointment of respondent No.4 was just and proper for the reason that in fact, respondent No.4 had practised for requisite number of years before his appointment to the post of Law Officer in Andhra Bank. After interpreting Article 233(2) of the Constitution of India, the Division Bench came to the conclusion that it was not necessary for respondent No.4 to be in actual practice immediately before his appointment to the post of District & Sessions Judge. 10. In view of the fact that the appointment of respondent No.4 to the post of District & Sessions Judge had been challenged in the past and the same facts and legal issues had been discussed by the Division Bench in the afore-stated petition, we need not go into all the facts again, and relying upon the judgment delivered in Writ Petition No.9209 of 1989, we hold that the appointment of respondent No.4 was just and proper. 11. At this juncture, it was submitted by the petitioner that he was not a party to Writ Petition No.9209 of 1989 and, therefore, the entire issue should be considered afresh. 12. We do not accept the afore-stated submission made by the petitioner for the reason that the same issue had been decided earlier and, therefore, in our opinion, we need not go in detail once again. 13. For the afore-stated reasons, we do not see any substance in the petition as respondent No.4 was held to be eligible for appointment to the post of District & Sessions Judge in the afore-stated writ petition decided by this Court and, therefore, we do not go into the said issue again. 14. The petition is, therefore, rejected with no order as to costs. ANIL R. DAVE, C.J. 24th December, 2008 R. SUBHASH REDDY, J. To 1. The Secretary to the Hon'ble President of India, Rashtrapathi Bhavan , New Delhi. 2. The Secretary to the Hon'ble Governor of Andhra Pradesh, Raj Bhavan, Hyderabad. 3. The Registrar General, High Court of Andhra Pradesh, High Court Buildings, Hyderabad. 4. One copy to Sri A. Rajasekhar Reddy, Asst. Solicitor General, High Court Buildings, Hyderabad (OPUC). 5. Two CD copies. ARS [1] AIR 1961 SC 816