Civil Writ petition No.13492 of 2008 :1: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MAY 16, 2009 Baldev Singh .....Petitioner VERSUS State of Haryana & others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.S.P.Singh, Advocate, for the petitioner. Mr.Harish Rathee, Sr.DAG, Haryana, for respondent Nos.1 to 3. Mr.J.S.Yadav, Advocate, for respondent No.4. **** RANJIT SINGH, J. Petitioner has questioned the appointment of respondent No.4 as a President of District Consumer Disputes Redressal Forum, Narnaul, District Mohindergarh. The ground of attack as advanced by the petitioner is that respondent No.4 was not eligible or qualified to be appointed as President of the District Consumer Forum. The petitioner has challenged the appointment of Civil Writ petition No.13492 of 2008 :2: respondent No.4 on the ground that he does not possess the qualifications required for the post in the light of the provisions of Section 10 of the Consumer Protection Act, 1986 (for short “Consumer Act”) and in terms of Article 233(2) of the Constitution of India. The petitioner would also take in aid the provisions of Rule 49 framed by Bar Council of India Rules, 1975 (hereinafter referred to as “1975 Rules”) by urging that respondent No.4 would not fall within the definition of an Advocate and hence could not have been held eligible or qualified for the appointment. Haryana State Consumer Disputes Redressal, Commission issued a notification on 22.8.2007 for filling up four posts of Presidents in the District Consumer Disputes Redressal Forum at Ambala, Narnaul, Rewari and Sonepat. The petitioner was also the applicant and filed his application complete in all respects with all requisite documents. The petitioner was called for interview and he accordingly appeared before the Interview Board on 11.1.2008. The petitioner would submit that result was neither displayed on the board nor the marks obtained by each candidate in interview intimated through post etc. The petitioner waited for the result for three months, when he learnt that names of four persons stood recommended. He also learnt that one of the person recommended for the post was not even eligible to be so appointed. The petitioner accordingly made an application under Right to Information Act, in response to which he received a communication dated 21.7.2008 intimating that respondent No.4 was selected for the post of President at Narnaul. The particulars of respondent No.4, as disclosed in Annexure P-3, showed that he was enrolled as an Civil Writ petition No.13492 of 2008 :3: Advocate w.e.f.17.11.1973 and had practiced at Bulandsahar from this date till 16.11.1976. It is further mentioned that respondent No.4 had retired as Deputy Director, Panchayat (Legal) on superannuation from Haryana Government on 30.12.2006. The criteria adopted by the selection committee was also enclosed. The petitioner would aver that respondent No.4 was having only 3 years experience at the Bar as an Advocate, but was recommended and appointed as President of the District Consumer Dispute Redressal Forum at Narnaul and the petitioner, who had a better claim and was fully eligible, was ignored. As per the petitioner, respondent No.4 is neither qualified nor eligible for the post of President of the District Forum and that his appointment is in violation of the provisions of Section 10 of the Consumer Act, which makes a provision for composition of the District Forum. Section 10 of the Consumer Act provides that each District Forum shall consist of a person, who is or who has been or is qualified to be a District Judge, who shall be its President. This is so provided in Section 10(1)(a) of the Act. Section 10(1)(b) lays down the qualification of two other members, one of whom shall be a woman for being members of the District Forum. The method of appointment and the constitution of the selection committee is also given in the Section as such. Section 10(2) provides for the term of the office etc. Reference is then made to Article 233(2) of the Constitution to plead that appointment of respondent No.4 runs contrary thereto as petitioner was not qualified to be a District Judge. The submission is that the qualifications for the appointment of a District Judge are provided under Article 233(2) of the Constitution of Civil Writ petition No.13492 of 2008 :4: India and hence same are to be kept in view while appointing a person as President of the District Forum that being requirement under Section 10 of Consumer Act and such a person has to be one who is qualified to be a District Judge. By making reference to Article 233(2) of the Constitution of India, it is urged that for being eligible and to be appointed as a District Judge, one has to be an Advocate or a Pleader for a period not less 7 years and such a person has not to be in the service of Union or the State. Article 233(2) is as under:- “(2) 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 as an advocate or a pleader and is recommended by the High Court for appointment.” It is, thus, submitted that respondent No.4 being in the service of the Government could not have been eligible for being appointed as a District Judge and also on the ground that he was not an Advocate or a Pleader for seven years and hence his appointment as a President would be bad in law. This plea is raised on the ground that the petitioner is in service. In addition, it is also pointed out that selection of respondent No.4 would run contrary to the provisions of Rule 49 of the 1975 Rules. This Rule provides that an advocate shall not be a full time salaried employee of any person, government, firm, corporation or concern so long as he continues to practice. The plea, therefore, is that respondent No.4 was a full time salaried employee of a Government and hence could not be termed as an advocate in view of Rule 49 of the 1975 Rules and, thus, was not eligible for being appointed as a District Judge, which was Civil Writ petition No.13492 of 2008 :5: essential qualification for him to be appointed as a President of the District Forum. It is accordingly urged that ineligible and disqualified person has been appointed. Prayer is, thus, to set aside his appointment being illegal and arbitrary and having been made in violation of the statutory provisions. State as well as respondent No.4 have filed written statement controverting the pleas raised in the writ petition. Respondent No.4 initially filed a written statement which he subsequently amended. The said amendment was allowed. The writ petition was ultimately admitted and has now been listed for hearing as per the directions of the Admitting Bench. In the written statement filed on behalf of respondent Nos.1 to 3, reference is made to the notice published in the Newspapers for inviting applications for filling up these four posts. The eligibility and disqualification as laid down in the advertisement are as under:- “Applications are invited for filling up 4 vacant posts of Presidents in the District Consumer Disputes Redressal Forum, Ambala, Narnaul, Rewari and Sonepat from amongst following who otherwise not ineligible or disqualified as per provisions of Consumer Protection Act, 1986 and Haryana Consumer Protection Rules, 2004:- i) Advocates/Pleaders having not less than 10 years standing at Bar and not less than 35 years of age as on 31.8.2007. ii) Serving District/Addl.District Judges; and iii) Retired District/Addl.District Judges. Civil Writ petition No.13492 of 2008 :6: iv) District Attorney/Deputy District Attorney/ Assistant District Attorney having not less than 10 years standing including service and practice.” Reference is made to the provisions of Section 24 CPC to point out that a person to be eligible for being appointed as a Public Prosecutor or an Additional Public Prosecutor is if he has been in practice as an advocate for not less than seven years. Even practice as a Pleader is to be deemed to be a period during which such person has been in practice as an advocate. In this background, reference is made to the record of respondent No.4 to say that he was enrolled as an Advocate on 17.11.1973 and thereafter was appointed as a Government Pleader by Governor of Haryana on 12.12.1979. Respondent No.4 retired as a Deputy Director, Panchayat (Legal ) on 31.12.2006. It is accordingly stated that he was called for interview being eligible. It is also pointed out that a Government counsel may be a Public Prosecutor or a Government Advocate or a Government Pleader. He too gets experience in handling various types of cases and such a person would fall in the description as an Advocate. In the reply filed by respondent No.4, he in addition, has pointed out that the petitioner has no locus to file this petition as his name does not figure in the waiting list and even if appointment of respondent No.4 is to be set aside, the petitioner cannot get any relief. It is also alleged that the petitioner has concealed material facts. In this regard, it is pointed out that petitioner has attempted to convey an impression as if respondent No.4 was in service at the Civil Writ petition No.13492 of 2008 :7: time of appointment, whereas this is factually not correct. It is disclosed that respondent No.4 had applied for this appointment as a practicing advocate and in this regard has made reference to his application which is placed on record with the reply. It is claimed that respondent No.4 has thirty years experience as an Advocate as he was appointed as a Government Pleader which he remained from December, 1979 till the date of his retirement in 2006. Respondent No.4 would also make reference to the fact that he was held eligible and called for interview for selection to the Haryana Superior Judicial Service in the year 1992, which would indicate that he was considered eligible keeping in view the provisions of Article 233(2) of the Constitution of India. Contesting the plea raised by the petitioner on the basis of Rule 49 of the 1975 Rules, it is pointed out that the present Rule 49 was differently worded prior to 22.6.2001, which then had following part as well:- “Nothing in this rule shall apply to a Law Officer of the Central Government of a State or of any Public Corporation or body constituted by Statute who is entitled to be enrolled under the rules of his State Bar Council made under section 28(2) (d) read with section 24(1)(e) of the Act despite his being a full time salaries employee. Law Officer for the purpose of this rule means a person who is so designated by the terms appointment and who, by the said terms, is required to act and/or plead in courts on behalf of his employer.” It is only after 22.6.2001 that the above noted provisions have been deleted. From this, it is pleaded that experience of Civil Writ petition No.13492 of 2008 :8: respondent No.4 as a Government Pleader till 22.6.2001 cannot be nullified, which would, thus, mean that respondent No.4 had 24 years experience as an advocate being a Government Pleader etc. Both the sides have cited large number of precedents before me in support of their respective contentions. All of these may not be much relevant considering the controversy involved in the present case. Counsel for the petitioner was rather committed in his submission and relied upon some of the judgments to urge that an advocate, who is in the Government service even if he be a Government Pleader or a Public Prosecutor or even a State counsel working in the office of Advocate General, would not be advocate as per Rule 49 of the 1975 Rules and hence would not be eligible for being considered for the appointment of President of Consumer Protection Act. That being the line of emphasis of the counsel, the majority of judgments cited by him were those which had interpreted the word “Advocate” in the light of Rule 49 of 1975 Rules. On the other hand, counsel for the State as well as respondent No.4 were equally emphatic in submitting that a Pleader or a person working as a District Attorney or as a Government advocate cannot be held ineligible for being considered for appointment on the ground that he is not an advocate when seen in the context of Rule 49 of the 1975 Rules. To answer the plea of locus with which the counsel for the petitioner was confronted, he would say that any body can challenge the appointment in case disqualified or ineligible person was appointed. In response to specific query, the counsel conceded that present one was not a writ of quo-warranto, but prayer was only to issue writ in the nature of mandamus/certiorari for quashing the Civil Writ petition No.13492 of 2008 :9: appointment/selection of respondent No.4. Another fact of significance, which the counsel for the petitioner conceded, was that he had not raised a challenge to the advertisement as such on any of the grounds including that the eligibility conditions or the disqualification as laid down in the advertisement were contrary either to the provisions of the Act or in violation of the Constitution. In short, there was no challenge made by the petitioner that the advertisement suffers from any such infirmity. In this background, the challenge is required to be seen in the context of conditions of eligibility and disqualification as provided in the advertisement. It is, thus, to be seen if respondent No.4 was eligible or qualified for being appointed to the post in terms of advertisement, Annexure P-1. This in a way narrowed down the controversy. This fact was also not seriously disputed by the counsel for the petitioner. In this context, number of judgments which were cited at the bar may not be relevant, though to be fair to the counsel, these would need a notice. The conditions of eligibility and disqualification as given in the advertisement have already been reproduced above. As per Annexure P-1, a person who is not eligible or disqualified as per the provisions of Consumer Act and the Haryana Consumer Protection Rules could apply for appointment, if he was covered by any of the four clauses given in the advertisement. Thus, an Advocate/Pleader having not less than 10 years standing at the bar, if he fulfilled the age criteria could apply. Similarly, serving District/Addl.District Judge as well as retired District/Addl.District Judges could so apply. District Attorney/Deputy District Attorney/Assistant District Attorney could also apply if they had not less than 10 years standing. This standing Civil Writ petition No.13492 of 2008 :10: significantly was to be inclusive of service and practice. Thus, Advocates/ Pleaders having not less than 10 years standing at Bar, District Attorney, Deputy District Attorney, Assistant District Attorney having not less than 10 years standing as a practice and service apart from serving and retired District and Addl.District Judges were eligible and qualified to apply. In this background, the law cited would need appreciation. Reference is made to Bar Council of Gujarat Vs. Vinod Harjivandas Dixit, AIR 2001 Gujarat 132. Interpreting Gujarat Bar Council (Constitution and Conduct of Business) Rules, a Division Bench of Gujarat High Court in this case has held that an advocate voluntarily depositing/suspending Sanad for holding office of profit ceased to be a member of Bar Council for a period of suspension. This case apparently would not apply to the facts of the present case. Here an advocate, who was a member of the Bar Council voluntarily intimated the suspension of practice as an advocate and he was said to be not an advocate being no more on the electoral roll and in this context it was held that he will be deemed to have vacated his office when he ceased to be an advocate. Such is not the situation in the present case. It is no body's case that respondent No.4 had ever sought suspension of his licence. Reference is made to Akhilesh Kumar Misra and others Vs. The High Court of Judicature at Allahabad and others, AIR 1995 Allahabad 148 where an advocate, who was serving as an Assistant Public Prosecutor, was not permitted to appear in U.P.Higher Judicial Service examination by counting that period towards his practice during which he was Civil Writ petition No.13492 of 2008 :11: Assistant Public Prosecutor. This observation was made by the court while interpreting Section 25 Cr.P.C. It is no body's case that respondent No.4 was a Public Prosecutor for which it can be said that he is not entitled to count such period as standing an advocate. Similarly, reference made by the counsel to K.R.Biju Babu Vs. High Court of Kerala & Anr., 2008 LAB.I.C. 1784 would also not be attracted to the facts of the present case as it was also a case where a person was a Public Prosecutor appointed to conduct CBI cases and was so found to be holding a civil post under the Union of India and as such could not be treated as a practicing advocate. Mallaraddi H.Itagi and others Vs. The High Court of Karnataka and another, 2002 LAB.I.C.2074 was also a case where Public Prosecutor was held to be a Government servant and not to be a practicing advocate. Similar is the situation in the case S.Biju Vs. High Court of Kerala, 2001(4) SCT 742 where again the period of service as an Assistant Public Prosecutor was held not to be countable as a period of practicing advocate for the purpose of selection as Munsiff Magistrate. The ratio of law laid down by this court in Dr.Mrs.S.K.Bhatia Vs. State of Punjab, 1998(1) S.C.T. 514 apparently is in different context and it was held that Deputy Advocate General and Assistant Advocate General, who are selected on regular basis and are in a regular pay scale are to be treated as Government servants. This was in context to see whether such appointments were contractual or regular appointment. It is not held that they are not to be termed as an advocate. Rather, observations made by Division Bench of this court in Paramjit Singh Goraya Vs. Civil Writ petition No.13492 of 2008 :12: The Bar Council of India & Others, 2008(2) S.C.T. 196 may be of some relevance. Interpreting Rule 49 as amended w.e.f.22.6.2001, it was held that advocate who is in whole time employment of a Corporation, Bank and other such like institutions are ineligible to contest Bar Council elections, but an advocate who engages himself in the office of Advocate General would not be deemed to be a whole time employee of Government. It is held that such a person is not under administration control of the Government as he continues to be the officer of the court. He pleads the case of a Government in the same way as advocate pleads cases of their clients etc. It is, thus, categorically held that law officer engaged for services of the office of Advocate General cannot be excluded from the purview of definition of advocate and cannot be included in the category of Government Advocates employed on full time salary so as to fall within the purview of Rule 2(f) to incur disqualification for contesting the elections to the office of Bar Council. The case of Oma Shanker Sharma and another Vs. Delhi Administration and another, 1989 (7) Service Law Reporter 458 again was a case of Public Prosecutor, who was held ineligible for appointment as a District Judge. Shankar Sharma's case did not find the approval of the Hon'ble Supreme Court as would be noticed in later part of the judgment. The counsel for the petitioner still was dissatisfied and came back to cite some more judgments without realising that the present case is required to be decided in terms of the eligibility or disqualification as laid down in the advertisement. With a renewed vigor, he cited before me a decision in case of Munni Lal Garg Vs. Civil Writ petition No.13492 of 2008 :13: State of Rajasthan and others, AIR 1970 Rajasthan 164. No doubt, in this case a full Bench of Rajasthan High Court has taken a view that a person who is an advocate and who has practiced for more than seven years but partly as an advocate and partly as a pleader is not eligible for appointment to Higher Judicial Service, but it would require a notice that in the advertisement before me a pleader is eligible to apply which was not the position in the relevant Rules regulating the appointment of Advocates to the Higher Judicial Service under Rajasthan Higher Judicial Service Rules. Rather this was a case where the petitioner was not called for interview being ineligible in terms of Rajasthan Higher Judicial Services Rules, which he challenged on the ground of being ultra vires of Article 14 and 233 of the Constitution of India on the ground that Article 233(2) provides that a person who has to credit seven years practice either as an advocate or a pleader is eligible for appointment to the post of District Judge and Rule made in this regard was ex facie, ultra vires of the provisions of this Article of the Constitution of India. Thus, by interpreting this Rule, the court held that practice as a pleader was not eligible for appointment. In the present case, the position is exactly contrary. Here a person is eligible to apply even if he had worked only as a pleader and this also cannot be said to be in any manner contrary to or in violation of the provisions of Article 233(2) of the Constitution of India. As per Article 233(2), a pleader is eligible for appointment as a District Judge, the disqualification being that a person be not in the service of Union or State. Mathew Daniel Vs. State of Kerala and another, AIR 1996 Kerala 222 cited before me again would not be of much Civil Writ petition No.13492 of 2008 :14: assistance to the counsel for the petitioner as respondent No.4 was not seeking appointment on the ground that he had retired from the service as a District Judge. In this case, it was held that a person not retiring from service as a District Judge and who could not have been promoted as District Judge at the time of his retirement not competent to be appointed as a President of the District Forum. Respondent No.4 is not seeking his appointment on any of the ground that he was a District Judge or could have been promoted as a District Judge. There are more than one conditions provided for eligibility and serving and retired District and Addl. District Judges being one of these qualifications. Even the Advocates/Pleaders/ District Attorneys etc. are held eligible and not disqualified for appointment and District Attorney etc. could count their service towards ten years standing provided. Rather, I find that the ratio of law laid down by the Hon'ble Supreme Court in the case of Sushma Suri etc. etc. Vs. Govt. of National Capital Territory of Delhi and another, 1998(4) RSJ 346 would apparently apply to the facts of the present case. Petitioner Sushma Suri applied for recruitment to the Delhi Higher Judicial Service claiming that she had put in experience for not less than seven years as an advocate but was not called for interview. Sushma Suri was appointed Assistant Government Advocate in 1986 and then promoted as Addl.Government Advocate. When she was not called for interview, she filed a writ petition in the High Court at Delhi. The High Court relying upon the case of Oma Shankar (supra), held that she