Judgment : 1. By this petition, the petitioners pray for quashing and setting aside the proviso to clause (2) of the advertisement issued by the High Court for appointment to the post of District Judges in the judicial service in the State of Maharashtra. The impugned proviso says that a full time salaried Public Prosecutor, Assistant/Additional Public Prosecutor, Law Officer of the Central Government or State Government or any public corporation or body constituted by the Statute, would not be eligible for the post of District Judge. When it was noticed that the proviso was incorporated in the advertisement in view of the proviso to Rule 5 of the Maharashtra Judicial Service Rules, 2008 (for short “the Rules”), the petitioners by amendment have also challenged the validity of the proviso to Rule 5. 2. The petitioners, six in number, are all law graduates and have experience as advocates for more than 7 years. Initially they were practicing as advocates and thereafter are serving as Assistant Public Prosecutors and claim to be practicing as advocates. As Assistant Public Prosecutors they plead and argue before the respective courts and claim to be eligible for the post of District Judge in the judicial service of the State of Maharashtra. 3. In pursuance of an advertisement dated 18 February 2011 issued by the High Court, the petitioners submitted online applications for being appointed as District Judges. The online forms of the petitioners, however, were not accepted on the ground that the petitioners were ineligible to apply in view of the fact that they were working as full time salaried Assistant Public Prosecutors and were ineligible for being appointed to the posts of District Judge. The advertisement dated 18 February 2011 issued by the High Court prescribes eligibility criteria for the post of District Judge. Apart from the criteria regarding citizenship and permanent residency, the advertisement provides that a candidate must be a holder of Degree in Law and practicing as an advocate in the High Court or Courts subordinate thereto for not less than seven years or must be working or must have worked as a Public Prosecutor or a Government Advocate for not less than seven years. Proviso to clause 2(b) of the advertisement provides that a full time salaried Public Prosecutor, Assistant/ Additional Public Prosecutor, Law Officer of the Central Government or State Government or of any Public Corporation or Body constituted by Statute, would not be eligible for the post of District Judge. This proviso as well as proviso to Rule 5 of the Rules is impugned in the present petition. Proviso to Rule 5 reads as under: “Provided that a full time salaried Public Prosecutor, Assistant / Additional Public Prosecutor, Law Officer of the Central Government or State Government or of any Public Corporation or Body constituted by Statute, shall not be eligible for the post of District Judge.” The validity of the proviso is challenged on the ground that it is contrary to the provisions of Article 233 of the Constitution of India. Submissions of the parties 4. Mr. Anturkar, learned counsel appearing for the petitioners, strongly relying upon a three Judge Bench decision of the Supreme Court in Sushma Suri v. Govt. of National Capital Territory of Delhi, (1999) 1 SCC 330 , submitted that the petitioners, though employed as full time Assistant Public Prosecutors, were required to act and plead in the courts on behalf of the Government and as such were advocates within the meaning of Article 233(2) of the Constitution of India. The proviso in the advertisement and of the Rule 5 of the Rules being contrary to Article 233(2) of the Constitution was null and void and was required to be struck down. In the alternative, he submitted that the proviso must be read down to exclude the bar in respect of full time salaried Public Prosecutors or Assistant/Additional Public Prosecutors and other Law Officers of the Government and other statutory bodies who were required to plead on behalf of the Government or Public Statutory Corporations or Bodies. So read, the proviso would be applicable only in respect of the Public Prosecutors and other salaried employees of the State or other Public Corporations or Bodies constituted by a Statute where they were required only to act in an advisory capacity, giving advice to their employer and were not required or allowed to plead on behalf of the Government or Public Corporation or Bodies. 5. Per contra, Mr. 5. Per contra, Mr. Jamdar, learned advocate appearing for the respondent High Court, submitted that the decision in the case of Sushma Suri (supra) has been explained by the Supreme Court in its later decision in Mallaraddi H. Itagi v. the High Court of Karnataka (Civil Appeal No. 947-956 of 2003, decided on 18 May 2009), and has no application to the facts of the present case. He submitted that since the petitioners were employed as full time Assistant Public Prosecutors in the State of Maharashtra, they were not entitled to be appointed to the post of District Judge and their applications were rightly rejected by the High Court. 6. Mr. Jamdar also referred to and relied upon an unreported decision of this Court in Ayub S. Pathan v. High Court of Bombay (Writ Petition No. 1849 of 2011 decided on 3rd March 2011). In that case, the petitioners, who had obtained a Law Degree and were in service of Government of Maharashtra as salaried Public Prosecutors, had challenged the very advertisement dated 18th February 2011 before the Principal Bench of this Court. Before this petition which was filed at Aurangabad Bench was called at and heard by the Principal Bench at Mumbai, this Court dismissed the petition of Ayub S. Pathan, holding that the Public Prosecutors who are in full time employment form a different class and, therefore, not eligible for being considered for the post of District Judge. It is submitted that the petition deserves to be dismissed summarily. 7. In our view, the said decision requires reconsideration for the reasons indicated below. 8. Article 233 of the Constitution of India provides for appointment of District Judges and reads as under: 233. Appointment of district judges.- (1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. (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 an advocate or a pleader and is recommended by the High Court for appointment.” Article 233 of the Constitution of India contemplates appointment to the post of District Judge from two sources. The first source is by way of promotion of the subordinate judges working in the districts. The second source, which is commonly known as direct recruitment, is to be made from practicing advocates of not less than seven years standing as an advocate or a pleader. Article 233(2) uses the present perfect tense by using the expression “has been” before the words “for not less than seven years an advocate or a pleader”. The present perfect tense contemplates something which has happened in the past and continues to the present, that is to say that a person has been enrolled and practicing as an advocate in the past for seven years and presently continues to be an advocate. Article 233(2) contemplates that the person who has been practicing as an advocate for seven years or more and continues to be an advocate on the date of the advertisement/appointment would be eligible for appointment as a District Judge. 9. There is no dispute that the petitioners were enrolled as advocates more than seven years ago. In paragraph 3 of the petition they have asserted that they have experience as advocates for more than seven years and this fact has not been controverted. They were appointed as Assistant Public Prosecutors between the years 2002 and 2009 and on the date of the application as also on the date of filing of the petition they were serving as Assistant Public Prosecutors. The only question, therefore, that arises for our consideration is whether on the date of their applications and on the date of the petition they continued to be advocates to be eligible for appointment as District Judge under Article 233 of the Constitution of India. In our view, the issue is res integra and is covered by the decision of the Supreme Court in the case of Sushma Suri (supra). 10. In the case of Sushma Suri, the appellant before the High Court had passed the examination of Advocate-on- Record conducted by the Supreme Court of India in the year 1982 and in 1986 was appointed as an Assistant Government Advocate. Thereafter she was promoted to the post of Additional Government Advocate in the Supreme Court. In pursuance of an advertisement of the High Court of Delhi, she applied for the post of District Judge claiming that she had the experience of not less than seven years as an advocate. Thereafter she was promoted to the post of Additional Government Advocate in the Supreme Court. In pursuance of an advertisement of the High Court of Delhi, she applied for the post of District Judge claiming that she had the experience of not less than seven years as an advocate. She was not called for interview. She filed a petition in the High Court which was rejected. On her appeal, the Supreme Court examined the question whether the appellant was an advocate for the purpose of Article 233 of the Constitution of India as envisaged by Rule 7 of the Delhi Higher Judicial Service Rules, 1917. Referring to Rule 49 framed by the Bar Council of India, the Supreme Court held that albeit Rule 49 provides that an advocate shall not be a full time salaried employee of any person, Government, firm, corporation or concern, but it carves out an exception in case of Law Officers of the Government or statutory corporate bodies and despite he being in the full time salaried employment if such Law Officer is required to act or plead in Court. The Supreme Court specifically held: “An advocate employed by the Government or a body corporate as its law officer even on terms of payment of salary would not cease to be an advocate in terms of Rule 49 if the condition is that such advocate is required to act or plead in courts on behalf of the employer. The test, therefore, is not whether such a person is engaged on terms of salary or by payment of remuneration, but whether he is engaged to act or plead on its behalf in a Court of law as an advocate.” (emphasis supplied) 11. In our view, the case of the petitioners is squarely covered by the decision of the Supreme Court in the case of Sushma Suri (supra). The later decision of the Supreme Court in the case of Mallaraddi H. Itagi (supra) has no application to the facts of the present case. In that case, the appellants before the Supreme Court had surrendered their licence to practice before the Bar Council when they entered the service. The later decision of the Supreme Court in the case of Mallaraddi H. Itagi (supra) has no application to the facts of the present case. In that case, the appellants before the Supreme Court had surrendered their licence to practice before the Bar Council when they entered the service. The Supreme Court held that the fact that they had surrendered their licence to practice before the Bar Council was clearly indicative of the fact that they were not advocates and as such were not eligible for being considered for appointment as District Judges. The decision is clearly distinguishable on facts because in the present case the petitioners have averred, and which fact is not controverted so far, that as Assistant Public Prosecutors they plead and argue before the respective courts. 12. The decision in the case of Sushma Suri (supra) was not cited before the Division Bench which decided the case of Ayub S. Pathan. 13. Hence the following order:- Rule. Interim relief is declined. Mr. Jamdar waives service of Rule. Since we are inclined to take a view different than the view taken by the earlier Division Bench in light of the decision of the Supreme Court in Sushma Suri v. Govt. of National Capital Territory of Delhi, (1999) 1 SCC 330 , the matter is required to be heard by a Larger Bench. Office is accordingly directed to place the papers before the Hon’ble the Chief Justice on the administrative side for reference to a Larger Bench.