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

2. The writ petition came up for a preliminary hearing before W. Broome and G. Kumar, JJ., when it was urged that the expression "an advocate of a High Court" in Article 217 (2) (b) meant an advocate practising in the High Court and not one practising in a Court or Courts subordinate to the High Court. In support of that interpretation, the language used in Article 124 (3) on the one hand and that in Article 233 (2) on the other was relied on to show that the Constitution has employed different language in connection with different purposes thereby making a deliberate distinction between "an advocate" and "an advocate of a High Court", the former meaning an advocate practising in a Court or Courts subordinate to the High Court and the latter meaning an advocate practising in a High Court. The contention was that while dealing with the qualifications for the post of a District Judge Article 233 (2) uses the expression "an advocate" as distinguished from the expression "advocate of a High Court" in Articles 217 (2) (b) and 124 (3) which lay down the qualifications for the offices of a Judge of a High Court and a Judge of the Supreme Court. The difference in the language, it was contended, indicated that whereas a person to be appointed a District Judge need be only an advocate of the prescribed standing, the one to be appointed a Judge either of a High Court or the Supreme Court must be an advocate who has practised for the required number of years in a High Court or two or more High Courts in succession. It was further contended that such an indication is also furnished by the language of Article 124 (3) (a) and (b), in the sense that just as the expression "a Judge of a High Court" in sub-clause (a) must mean a Judge who has worked as a Judge in the High Court, the expression "an advocate of a High Court" must similarly mean an advocate who has practised in a High Court.3. There was a difference of opinion between the two learned Judges. Broome, J., held that "on a plain reading of the relevant clauses" the correct interpretation of the expression "an advocate of a High Court" meant an advocate enrolled as an advocate of a High Court, irrespective of whether on such enrolment he practised in a High Court or a Court or Courts Subordinate to the High Court. G. Kumar, J., on the other hand, accepted the contention urged on behalf of the appellant and held that the expression "an advocate of a High Court" meant one who has practised for the required period in a High Court, and therefore, a person who has practised only in a Court or Courts Subordinate to the High Court would not answer the qualification required under Article 217 (2) (b). Such a difference of opinion having thus arisen between the two learned Judges, the matter was referred to Mathur, J., who agreed with Broome, J., and thereupon the writ petition was dismissed. The present appeal on certificate granted by the High Court challenges the correctness of the order dismissing the writ petition.

Reasoning:
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.