Case: Chandra Prakash Agarwal Vs. Chaturbhuj Das Parikh &amp; Others

of a High Court, no matter whether he practised in the High Court itself or in courts subordinate to it or both. The expression "an advocate or a pleader of a High Court" having thus acquired the meaning as aforesaid, it must be presumed that a similar expression, namely, "a pleader of a High Court for a period of not less than ten years" was used in the same sense in Section 101 (3) (d) of the Government of India Act, 1915, when that section laid down the qualifications for the office of a Judge of a High Court in the case of a pleader. The same phraseology was also repeated in Section 220 (3) (d) of the Government of India Act, 1935, except for one change, namely, that in calculating ten years standing his standing as a pleader of two or more High Courts in succession was also to be included.7. It will be noticed that in the latter part of sub-section (3) of Section 220, which provided that in calculating the period during which a person had been a pleader, the period during which he had held judicial office after he became a pleader shall be included, the expression used is simply a "pleader" and not a pleader of any High Court. But the word "pleader" in this part of Section 220 (3) must obviously mean the same person as "the pleader of any High Court" mentioned earlier in the same sub-section because the period during which he held any judicial office was to be reckoned for his standing of ten years as a pleader of a High Court. This clearly highlights the point that what Section 220 (3) in the 1935 Act required as a qualification was that a person to be appointed a Judge of a High Court had to have ten years standing as a pleader of any High Court, which meant that he must have been enrolled as a pleader of any High Court for that period. The question as to where he was practising, whether in the High Court itself or in courts subordinate thereto, does not appear to make any difference. The same phraseology, except for the change from the word pleader to the word advocate has been carried into Article 217 (2) (b). That was because under Section 8 of the Bar Councils Act the roll which the High Court was to prepare and maintain was the roll of the advocates of the High Court which included pleaders entitled as of right to practise in the High Court immediately before the date on which Section 8 of that Act was brought into force.8. It seems, therefore, indisputable that the expression pleader of a High Court used in the Constitution Acts of 1915 and 1935 the expression "an advocate of a High Court" used in Articles 217 (2) (b) and 124 (3) must mean respectively a pleader or an advocate on the roll as such of a High Court and entitled as of right by that reason to practise in the High Court. There is nothing in any of these provisions to indicate that an advocate of a High Court can only be that advocate who has been practising in the High Court. If the meaning of the expression "an advocate of a High Court" as suggested on behalf of the appellant were to be accepted, a very strange anomaly, as pointed out by Broome, J., would result while construing Article 124 (3), namely, that an advocate who has practised in the Supreme Court for the required period but not in a High Court would not be eligible for the office of a Judge of the Supreme Court. For these reasons we are in agreement with Broome and Mathur, JJ., on the construction placed by them on Article 217 (2) (b). The first contention of counsel for the appellant, therefore, must fail.9. Counsel next relied on Article 233 (2) in support of the construction suggested by him of Article 217 (2) (b) and pointed out that wherever the Constitution did not wish to insist on an appointee having been an advocate practising in a High Court, it has used a different expression, namely, an advocate simpliciter, as in Article 233 (2). Article 233 deals with appointment of District Judges and clause 2 thereof provides that a person not already in the service of the Union or 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. It is true that in this clause the word "advocate" is used without the qualifying words "of a High Court". It is difficult, however, to see how the fact that the word "advocate" only used in connection with the appointment of a District Judge would assist counsel in the construction suggested by him of the expression "advocate of any High Court" in Article 217, or that that expression must mean an advocate who has had the necessary number of years practice in the High Court itself. The distinction, if any, between the words "an advocate" in Article 233 (2) and the words "an advocate of a High Court" in Article 217 (2) (b) has no significance in any event after the coming into force of the Advocates Act, 1961, as by virtue of Section 16 of that Act there are now only two classes of persons entitled to practice, namely, senior advocates and other advocates.10. We find that in two of its decisions, in Sengalani Gramani v. Subbayya Nadar, AIR 1967 Mad 344 and V. G. Row v. A. Alagiriswamy, AIR 1967 Mad 347 , the High Court of Madras also has interpreted Article 217 (2) (b) in the same manner as we have done. In our view the construction of Article 217 (2) (b) adopted by Broome, J., and on a reference to him by Mathur, J., is correct.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]8. It seems, therefore, indisputable that the expression pleader of a High Court used in the Constitution Acts of 1915 and 1935  the expression "an advocate of a High Court" used in Articles 217 (2) (b) and 124 (3) must mean respectively a pleader or an advocate on the roll as such of a High Court and entitled as of right by that reason to practise in the High Court. There is nothing in any of these provisions to indicate that an advocate of a High Court can only be that advocate who has been practising in the High Court. If the meaning of the expression "an advocate of a High Court" as suggested on behalf of the appellant were to be accepted, a very strange anomaly, as pointed out by Broome, J., would result while construing Article 124 (3), namely, that an advocate who has practised in the Supreme Court for the required period but not in a High Court would not be eligible for the office of a Judge of the Supreme Court. For these reasons we are in agreement with Broome and Mathur, JJ., on the construction placed by them on Article 217 (2) (b). The first contention of counsel for the appellant, therefore, mustis true that in this clause the word "advocate" is used without the qualifying words "of a High Court". It is difficult, however, to see how the fact that the word "advocate" only used in connection with the appointment of a District Judge would assist counsel in the construction suggested by him of the expression "advocate of any High Court" in Article 217, or that that expression must mean an advocate who has had the necessary number of years practice in the High Court itself. The distinction, if any, between the words "an advocate" in Article 233 (2) and the words "an advocate of a High Court" in Article 217 (2) (b) has no significance in any event after the coming into force ofthe Advocates Act, 1961, as by virtue of Section 16 of that Act there are now only two classes of persons entitled to practice, namely, senior advocates and other advocates.10. We find that in two of its decisions, in Sengalani Gramani v. Subbayya Nadar, AIR 1967 Mad 344  and V. G. Row v. A. Alagiriswamy, AIR 1967 Mad 347 , the High Court of Madras also has interpreted Article 217 (2) (b) in the same manner as we have done. In our view the construction of Article 217 (2) (b) adopted by Broome, J., and on a reference to him by Mathur, J., is correct.