Devendra Kumar Mishra v. State of Bihar — 1982 DIGILAW 39 (PAT)

JUDGMENT S. B. Sinha, J. - In this writ application the petitioner has prayed for issuance of a writ of or in the nature of mandamus directing the Bihar Public Service Commission (respondent no.2) to publish the result of the petitioner and for a direction to recommend his name for appointment in the post of Munsif in the Bihar Civil Services (Judicial Branch) and also for issuance of an appropriate order or direction directing the respondent State to consider the case of the petitioner for appointment in the said post. 2. The facts of the case are not at all in dispute. 3. The petitioner is a holder of the degrees of B.Sc. and L.L.M. He was appointed as an Assistant Public Prosecutor by the State Government by a notification bearing No. 3940, dated 29.3.1984 on which post he joined on 2.4.1984. The petitioner, thereafter, subsequently, was transferred to Darbhanga as an Assistant Public Prosecutor. 4. An advertisement was issued in the Aryawarta, a daily Hindi newspaper, published from Patna, whereby applications were invited for 22nd Bihar Judicial Service Competitive Examination. The applicants for the said post were directed to make the applications in the prescribed form mentioned in appendix 'kha' upto 7th January, 1986. One of the eligibility clauses for appointment in the said post was that he must be a Law Graduate and must be a legal practitioner continuously for a period of one year from the date of the advertisement. 5. Pursuant to the said advertisement, the petitioner applied for the said post and he was allowed to sit in the examination. 6. The petitioner was also called for interview which took place on 4.10.1988 on which date, one of the members of the Interview Board asked the petitioner as to whether he has furnished the certificate of the District Judge or Registrar of the High Court along with his application and thereto the petitioner replied that he had not submitted such a certificate as he had been working as an Assistant Public Prosecutor. 7. However, the result of the petitioner was not published and upon enquiry made by him in this regard he came to learn by reason of a letter issued by the respondent no. 7. However, the result of the petitioner was not published and upon enquiry made by him in this regard he came to learn by reason of a letter issued by the respondent no. 2, Commission, bearing Memo No. 37 PSC dated 8.11.1988 wherein it was stated that as he had not submitted any certificate of practice either from the District Judge or Registrar of the High Court and he was required to furnish a certified copy of the judgment in respect whereof he allegedly mentioned at the time of his interview, his name was not recommended. The petitioner, thereafter submitted a copy of the judgment and also produced a photostat copy of the case report being 1976 B.B.C.J. at Page 554. 8. According to the petitioner he could not file the certified copy of the judgment immediately thereafter owing to the strike of non-Gazetted employees and after obtaining the certified copy thereof, he submitted the same as also the photo copy of the certificate granted by the District Judge, Darbhanga along with its letter dated 29.11.1988, which is contained in Annexure 8 to the writ application. 9. The petitioner, however, was intimated by a letter dated 8.11.1988 by respondent no. 2 (Bihar Public Service Commission) that he did not submit certificate either from the District Judge or Registrar of the High Court, Patna even at the time of interview and further although he was requested to furnish the certified copy of the judgment of the High Court by registered post within seven days from the date of receipt of the aforesaid letter as stated by him before the respondent no. 2 Commission that no such certificate was required to be produced in view of the aforementioned judgment. 10. The petitioner in reply to the aforementioned letter dated 8.12.1988 as contained in Annexure 10 to the writ application stated that he had already sent the certified copy of the aforementioned judgment. In the said letter the petitioner stated that he had been informed by the office that he had not been selected and his application had been turned down. 11. In the said letter the petitioner stated that he had been informed by the office that he had not been selected and his application had been turned down. 11. The petitioner had, thereafter, filed a supplementary affidavit wherein he has annexed a copy of the letter dated 21.12.1988, whereby the officer on Special Duty (respondent no.3) informed him that he did not comply with the provisions of Rule 9 (vi) (b) of the Bihar Civil Service (Judicial Branch) (Recruitment) Rules, 1955 nor did he submit the required certificate even at the time of interview. 12. In this case a counter affidavit has been filed on behalf of respondent nos.2 and 3. In the said counter affidavit, it was stated that the petitioner did not comply with provisions of Rule 9 (vi) (b) of the Bihar Civil Service Judicial Branch (Recruitment) Rules, 1955 nor did he comply with the instructions as notified in the newspapers as well as in the Bihar Gazette. 13. In the said counter affidavit, however, it has been admitted that the petitioner has obtained a total marks of 495 which was higher than the marks obtained by some of the candidates who were recommended for appointment as Munsif. According to the respondent nos.2 and 3, however, the result of the petitioner was not published as he did not comply with the provisions of Rule 9 (vi) (b) as also the advertisement notice. It was further mentioned that the certificate of the District Judge was granted on 17.11.1988 whereas the interview concluded on 10.10.1988. The respondents have also filed a supplementary counter-affidavit. 14. Mr. Tara Kant Jha, the learned counsel appearing on behalf of the petitioner raised a very short question. According to the learned counsel, an Assistant Public Prosecutor appointed by the State Government is also a legal practitioner within the meaning of the, provisions of the said Rules. In this connection the learned counsel has drawn my attention to the differences between Hindi version and English version of the said Rules and submitted that as in terms of the Hindi version the requirement was that of a legal practitioner and not a practising advocate, the petitioner was fully qualified for appointment in the said post and, as such, the respondent Commission cannot be said to have any jurisdiction to withhold the result of the petitioner. The learned counsel in this connection has drawn my attention to the decision of this Court in Govind Chandrayan vs. The State of Bihar and another, reported in 1976 B.B.C.J. 554. 15. Learned counsel further relied upon the words 'Legal practitioner' as occurring in Legal Glossary 1988 edition as also in Oxford Dictionary. Learned counsel further submitted that as the petitioner was allowed to appear at the examination, it was obligatory on the part of the respondent Commission to publish his result. Learned counsel further submitted that if there is a conflict between the Hindi version and English version of the concerned rules, the Hindi version would prevail. Learned counsel, in this connection, has placed strong reliance in Ramdhyan Singh vs. State of Bihar and others (1979 (3) S.L.R. 369) and Alok Kumar Agrawal vs. State of Bihar and another (1976 B.B.C.J. 530). 16. Mr. Kamlapati Singh, learned Government Pleader No. V, appearing on behalf of the respondents on the other hand, submitted that the said Rules have to be read as a whole. From a perusal of the said Rules it would appear, according to the learned counsel, as also the advertisement as contained in Annexure 1 to the writ application that eligibility of a candidate for appointment in the said post is a minimum continuous practice for "a period of one year as legal practitioner". Learned counsel further submitted that the provisions of the said rules have to be read as a whole and from a perusal thereof it would be evident that the candidate must have one year's standing at the bar, as otherwise there would not have been any necessity for filing a certificate of such practice issued either by the District Judge or the Registrar of the High Court, as the case may be, depending upon the place where the candidate used to practice as a legal practitioner. According to the learned counsel the dictionary meaning of the word 'Legal Practitioner' should not be used in this case inasmuch as the word 'Legal Practitioner' must be used in a restricted sense. According to the learned counsel the dictionary meaning of the word 'Legal Practitioner' should not be used in this case inasmuch as the word 'Legal Practitioner' must be used in a restricted sense. Learned counsel further submitted that as in terms of Rule 9 (VI) (b) of the said Rules the petitioner was required to submit a certificate issued by the District Judge on the date when he was interviewed by the Commission and as he admittedly failed to submit the said certificate at that point of time, subsequent filing thereof would not cure the defect. Learned counsel further submitted that in the instant case the Hindi text and the English text of the Rules in question were published simultaneously and in that view of the matter both the versions have got to be read harmoniously. It was further submitted that the question as to whether Hindi version should be followed or English version should be followed depends upon the facts of each case. In this connection, learned counsel has drawn my attention to Mathura Prasad Singh and others vs. State of Bihar and others (A.I.R. 1975 Patna 295). M/s J.K. Jute Mill Co. Ltd. vs. State of U.P. and another (A.I.R. 1961 S.C. 1534) and M/s. Mahabir Flour Mills vs. Commissioner of Commercial Taxes, Bihar (1987 P.L.J.R. 624). 17. In the instant case, therefore, in view of the rival contentions of the parties, as noticed hereinbefore, the only question which falls for consideration is : whether an Assistant Public Prosecutor, who is an employee of the State of Bihar, was qualified to be appointed in the post of Munsif in terms of the provisions of the said Rules or not. 18. In the instant case, it is admitted that the petitioner himself, in his application, described himself as a Government servant and not as a practicing advocate. He admittedly did not fill up that portion of the application form wherein the details with regard to an applicants practice as Advocate were required to be furnished. On the other hand he filled up that portion of the form wherein the details of his employment, if any was to be given. He further filled up the blank column of the verification portion of the form, which was required only for the Government servant. 19. Mr. Jha, when questioned, admitted that the petitioner was never enrolled as advocate. 20. He further filled up the blank column of the verification portion of the form, which was required only for the Government servant. 19. Mr. Jha, when questioned, admitted that the petitioner was never enrolled as advocate. 20. In the instant case, in my opinion, the words legal practitioner has to be given a restricted meaning and not a wide meaning. 21. The word 'legal practitioner' has not been defined in the Rules. In such a situation such word has to be construed in the context the same has been used. After coming into force of the Advocates Act, 1961 all practitioners are required to enroll themselves with the State Bar Council or Bar Council of India, as the case may be. 22. In terms of the Bihar State Bar Council Rules a person is not qualified to be admitted as an advocate, who is either in full or part time employee or is engaged in any trade, business or profession subject, of course, to the exception that if such person is a Law Officer of the Central Government or the Government of a State or of any Public Corporation or body constituted by the State. 23. It may further be borne in mind that a person who has been enrolled as an Advocate in terms of the provisions of the Rules, does not cease to be an Advocate even after his appointment as a Law Officer of the State. 24. In Govind Chandrayan's case (supra) this Court held thus:- 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 full time 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. 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 Law Officer of 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 officer. Similar, it appears to me, 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 the work of the State Counsel in the High Court conducting criminal cases. The rules referred to above by implication designate them as law officer. Similar, it appears to me, 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 the 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 I (i) of Chapter V of the Bihar State Bar Council Rules are fulfilled. 8. 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. Nevertheless, 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". 25. If the petitioner was enrolled as an advocate in the rolls of the Bar Council, the matter would have been different. 26. In the instant case, clearly the Commission understood and used the words 'legal practitioner' as an Advocate, which is evident from the fact that after the word 'Vidhi Vyvasaya the word 'ADHIVAKTA' has been mentioned. The words 'legal practitioner' and 'has atleast one year's standing at the Bar' in no uncertain terms, are pointer to the fact that the candidate must be a practicing advocate, which in term means a person whose name appears in the rolls of the State Bar Council and not an Assistant Public Prosecutor who is not an advocate and not in the rolls of the Bar Council. Even in the advertisement after the words 'legal practitioner' the word 'Vakil' within the bracket had been mentioned. It is thus clear that the candidate was required to be an advocate, being on the rolls of the Bar Council by possessing a minimum qualification for holding the post. Thus, there is no escape from the conclusion that the petitioner having not been enrolled as an advocate but has been appointed as an Assistant Public Prosecutor was not eligible to appear in the said examination. 27. The petitioner, as noticed hereinbefore, himself understood the word legal practitioner in the aforementioned sense and thus he did not fill up the particulars relating to his practice as a lawyer but merely filled up that portion of the form wherein he may be required to give in details the particulars about his employment. Thus, even according to the petitioner himself, he did not practice as a lawyer/advocate. 28. Thus, the meaning given to the words 'Legal Practitioner', in my opinion, would not be of any conflict in the Hindi and English text of Rule 6 (C) of the said Rules. Rule 6 (C) of the said Rules reads as follows: "A candidate may be of either sex, and must :- (a) XX XX XX (b) XX XX XX (c) be a practitioner at the Bar of atleast one year's continuous standing on the date of the advertisement". 29. Thus, the aforesaid provision read with Rule 9, in my opinion, clearly excludes the possibility of a person becoming eligible to be appointed as a Munsif, who was never enrolled as an advocate and thus never had a practice at the Bar. 30. The words 'Practitioner at the Bar' and of atleast one year's continuous standing are of great significance. 31. Thus the provision in the context of Advocates Act, 1961 as also the Bar Council Rules both framed by the Bar Council of India as also by the Bihar State Bar Council, in my opinion, is a pointer to show that the eligibility of a person to qualify for such appointment must be one year practice as an advocate. It, however, does not mean that he ceases to be an advocate, after he is appointed as an Assistant public prosecutor. It, however, does not mean that he ceases to be an advocate, after he is appointed as an Assistant public prosecutor. It may further be noticed that if a person did not have the requisite qualification to be appointed in the said post, the question of publication of his result by the Commission only because he appeared at the examination does not arise. 32. In this connection the definition of 'legal practitioner' as also of 'Advocate' as contained in Legal Practitioners Act, 1879 (Act 18/79) and Advocates Act, 1961 may also be considered. Section 3 of the Legal Practitioners Act, 1879 defines the words 'legal practitioner' which is as follows :- "Legal practitioner means an Advocate, Vakil or Attorney of any High Court, a pleader, Mukhtar or revenue agent". Section 2 of the Advocates Act, 1961 defines the word 'Advocate' as follows:- "Advocate means an advocate entered in any roll under the provisions of this Act". 33. In this view of the matter the word 'Legal practitioner' has to be understood from the aforementioned angle and its dictionary meaning cannot be brought into play for the purpose of this case. 34. However, it may be mentioned that after coming into force of the Advocates Act, 196 I, some provisions of the Legal Practitioners Act, inter alia, so much of sections 8, 9, 16, 17, 19 and 41 of the Legal Practitioners Act as relating to the admission and in terms of the Legal Practitioners Act have stood repealed. The petitioner evidently does not answer the description of an Advocate, as contained in the Advocates Act, 1961. 35. It is now well settled that if the publication of the result depends upon fulfilment of a condition precedent for a candidate being qualified to appear at the examination, no question of estoppel arises only because such a candidate was permitted to appear at the examination either by mistake or otherwise. 36. In this view of the matter, there is no merit in this application, which is accordingly dismissed. 37. In the facts and circumstances of the case I shall make no order as to costs.