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1976 DIGILAW 103 (PAT)

Govind Chandrayan v. State of Bihar

1976-04-23

B.S.SINHA, S.SARWAR ALI

body1976
JUDGMENT S. Sarwar Ali, J. This is an application for quashing the order contained in Annexure 1. By this order the Bihar Public Service Commission intimated to the petitioner that his application for appearing at the 16th Bihar Civil Service (Judicial Branch) Examination, 1975, has been rejected as he was not eligible to appear at that examination. The petitioner further prays that the Commission-foresaid be directed to permit the petitioner to appear at the examination which was commencing from 26.12.1975. At the time of admission, an order was passed permitting the petitioner to sit at the aforesaid examination, but it was directed that the result of the petitioner should not be published during the pendency of the application. 2. Facts which are either not disputed or established on the basis of the affidavits that have been filed in this case may be compactly stated. They are as follows; The petitioner was enrolled as an advocate on 27.3.1973. He started regularly practising at Patna from that date. On 1.9.1975, he was appointed as an Assistant Public Prosecutor by the Government of Bihar. Immediately on his appointment, he started receiving training in the Public Training College at Hazaribagh, which, it appears, also imparts training to those who are newly appointed as Assistant Public Prosecutors. An advertisement was published by the Commission on 1.10.1975 in relation to holding of the 16th Bihar Civil Service (Judicial Branch) Examination, 1975, and inviting applications for the same. In response to the advertisement, the petitioner applied for One of the posts on 20.10.1975. The examination was to commence on 26.12.1975 but by the impugned annexure dated 5.12.1975, the petitioner was told that he could not appear at the examination. In the writ application it is stated that a certificate of the District Judge, Patna was filed by the petitioner along with his application showing that he was a practising advocate at the Patna District Court. 3. The ground on which the Commission appears to have decided that the petitioner was not eligible for appearing at the examination is that in the view of the Commission, the petitioner did not have one year continuous standing at the Bar on the date of advertisement. 4. The contention of the petitioner is that the Commission had taken an erroneous view of the legal position in thin king that the petitioner was not entitled to appear at the examination. 4. The contention of the petitioner is that the Commission had taken an erroneous view of the legal position in thin king that the petitioner was not entitled to appear at the examination. It will be necessary before dealing with the contention at some length to set out the relevant rules of the Bar Council of India Rules and of the Bihar State Bar Council. 5. The Bar Council of India Rule, 1975, have been made under the rules making powers conferred by the Advocates Act, 1961. Chapter II deals with "standards of professional conduct and etiquette" and section VII relates "restrictions on other employments". Rule 44 of this section is to the following effects :- "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. Nothing in this rule shall apply to a Law Officer of the Central Government or the Government of a State or of any public Corp-oration 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 salaried employee". In terms of these rules, it would be necessary to refer now to the Bihar State Bar Council Rules. The relevant rule relating to the condition subject to which a person may be admitted on the State roll is as follows :- "A person who is otherwise qualified to be admitted as an Advocate but is either in full or part-time service or employment or is engaged in any trade, business or profession shall not be admitted as an Advocate. Provided however that this rule shall not apply to - (t) Any person who is a Law Officer of the Central Government or the Government of a State or of any Public Corporation or body constituted by State. Provided however that this rule shall not apply to - (t) Any person who is a Law Officer of the Central Government or the Government of a State or of any Public Corporation or body constituted by State. For the purpose of this clause a 'Law Officer' shall mean a person who is so designated by the terms of his appointment and who by the said terms is required to Act, and or plead in courts on behalf of his employers" . Section 25 of the Code of Criminal Procedure, 1973 is as follows :- "25. (1) The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates. (2) Save as otherwise provided in sub-section (3), no police officer shall be eligible to be appointed as an Assistant Public Prosecutor. (3) Where no Assistant Public Prosecutor is available for the purpose of any particular case, the District Magistrate may appoint any other person to be the Assistant Public Prosecutor in charge of that Case: Provided that a police officer shall not be so appointed- (a) if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted; or (b) if he is below the rank of Inspector" . 6. A reading of all these provisions makes it clear that if a person is the Law Officer of the Government of a State then, irrespective of the fact that he is in that capacity either in-fulltime or part-time employment of the State he would be eligible to be enrolled and continue to be on the roll of the Advocates. As to what the expression 'Law Officer' means the rules themselves clarify the position by stating that the expression 'Law Officer' means (a) a person who is so designated by the terms of his appointment and (b) a person who is required to Act, and/or plead in courts on behalf of his employers. In this case, in view of section 25 of the Code of Criminal Procedure, 1973, it cannot be doubted that the second condition is clearly fulfilled. 7. The main controversy here can only be in relation to the first requirement, namely, whether an Assistant Public Prosecutor is designated a La w Officer by the terms of his appointment. In this case, in view of section 25 of the Code of Criminal Procedure, 1973, it cannot be doubted that the second condition is clearly fulfilled. 7. The main controversy here can only be in relation to the first requirement, namely, whether an Assistant Public Prosecutor is designated a La w Officer by the terms of his appointment. It is not in dispute that the Notification only states that a particular person has been appointed as an Assistant Public Prosecutor and does not state anything further. But in my view the first clause must not be given a narrow meaning but should be interpreted in a broad sense. We asked the learned counsel for the State to produce the relevant rules in relation to the appointment of the State Counsel in the High Court. That was produced. We have also seen the various Notifications that have been issued in relation to the appointment of State Counsels in the High Court. In none of those Notifications of appointments, it is specifically stated that a Government Pleader is appointed as a Law Officer of the State. It is only stated that he is appointed a Government Pleader, Standing Counsel, etc, The Rules relating to Legal Remembrancer and the Law Officers of Government in the High Court was produced by the learned Government Pleader. Although it is specifically stated in rule 1 that the Legal Remembrancer is a legal adviser and Law Officer of Government, it is not specifically stated in relation to the State Counsels. Only the heading of the Chapter is to the effect "The Advocate General and other Law Officers for the High Court at Patna". Thus it would appear that the Notifications of the appointments of the State Counsel in the High Court do not specifically state that they are Law Officers but have been always treated as such because of the nature of the work they undertake on behalf of the State. The rules referred to above by implication designate them as law officers. Similar, it appears to J1le, is the position in relation to the Public Prosecutor or Assistant Public Prosecutor. Their work in the Court below is in the nature similar to t he work of the State Counsel in the High Court conducting criminal cases. The rules referred to above by implication designate them as law officers. Similar, it appears to J1le, is the position in relation to the Public Prosecutor or Assistant Public Prosecutor. Their work in the Court below is in the nature similar to t he work of the State Counsel in the High Court conducting criminal cases. Thus I do not see why a distinction should be made between the Public Prosecutor and Assistant Public Prosecutor in the courts below and the State Counsel appearing for the State in the High Court. If the latter are Law Officer of the State, there is no reason to hold that the former are not. It would thus appear that the two conditions laid down in clause 1 (i) of Chapter V of the Bihar State Bar Council Rules are fulfilled. 8. Learned counsel for the respondents pointed out that the petitioner was undergoing a training at the Police Training College at Hazaribagh and because of undergoing that training he could not be said to be in continuous practice. But in my view, if it is held that the petitioner was a practising advocate on his appointment as an Asstt. Public Prosecutor, the mere fact that he was required to undergo some training in order to equip himself to discharge his duties better would not make any difference. It would not mean that he would be deemed to have ceased practising at the Bar. To illustrate, suppose the State Bar Council decides that there should be some sort of refresher course for advocate and it organises course, say for a period of three months. If an advocate goes to such a refresher course, he would not be actually appearing in court during that period. Never the less, it cannot be said that he has ceased to be practising as an advocate because of the participation in that refresher course. Similar, in my view, will be the position so far as the training of the nature in question is concerned. I am, therefore, of the opinion that because of receiving of training as stated above, the petitioner will not be deemed to have ceased to practice as an advocate, in view of the interpretations of the various relevant clauses of the Bar Council Rules. 9. For the reasons stated above, I am of the view that the petition is fit to be allowed. 9. For the reasons stated above, I am of the view that the petition is fit to be allowed. I would accordingly quash Annexure 1 and direct that the petitioner should be held eligible for being a candidate at the 16th Bihar Civil Service (Judicial Branch) Examination, 1975. We are informed that the petitioner has appeared in the examination in pursuance of the order of the Court passed at the time of the admission of the application. If that be so, his result should be published and further action taken in the light of this judgment. In the circumstance, there will be no order as to costs. B. S. Sinha, J. I agree. Application allowed.