S. B. SINHA, C.J.

QUESTION :

Whether calling for applications by the Metropolitan Sessions Judge or the Additional Metropolitan Sessions Judge for appointment in the post of Public Prosecutor/Additional Public Prosecutor would amount to soliciting the brief within the meaning of Rule 36 of the Bar Council of India Rules (hereinafter referred to as "the Rules") framed by the Bar Council of India and thereby would amount to professional misconduct or not is the question involved in these appeals.

FACTS :

Pursuant to or in furtherance of the Government Memo N. 34548/Courts, A.2/2000-1, dated 30-9-2000, the Collector and District Magistrate, Hyderabad district sent a letter dated 30-10-2000 to the Metropolitan Sessions Judge, Hyderabad requesting him to send panels along with bio-data particulars for appointment to the posts of Public Prosecutor and Additional Public Prosecutors. In turn, the Metropolitan Sessions Judge by letter dated 15-12-2000, requested the II Additional Metropolitan Magistrate-cum-Chief Metropolitan Magistrate to suggest panels whereafter the Chief Metropolitan Magistrate put up a notice in the notice board calling for applications from the advocates who are eligible to be so appointed.

Upon scrutinising the applications received, a panel was prepared whereafter including the appellant herein and others in the panel. A writ petition, which was marked as Writ Petition No. 7600 of 2001, was filed by the unofficial respondents herein praying for the following reliefs :

...... to issue an appropriate writ more particularly in the nature of writ of mandamus declaring the procedure adopted by the respondents consequent upon the Memo No. 34548/Courts.A.2/2000-1, dated 30-9-2000 issued by the 2nd respondent for the appointment of Public Prosecutors and Addl. Public Prosecutors in the Courts of respondents 3 to 7 as illegal and void and consequently direct the respondents to initiate fresh process for appointment of Public Prosecutors in the Metropolitan Sessions Courts, Hyderabad to be completed within a time-frame of three months.

The said writ petition was filed on the ground that the appointment to the posts of Public Prosecutors has not been done in terms of Section 24 of the Code of Criminal Procedure (hereinafter referred to as "the Code"). According to the petitioners the procedures laid down under A.P. Law Officers (Recruitment, Conditions of Service and Remuneration) Rules, 1967 had not been followed. Having regard to the social purpose under the scheme of the code as also the importance of the office which must be independent of the executive or police control, it was contended, that the advocates could not have made any application pursuant to or in furtherance of the said purported notification issued by the Metropolitan Sessions Judge as the same amounts to misconduct within the meaning of Rule 36 of the Rules.

A counter-affidavit was filed by the District Collector (1st respondent in the writ petition) wherein inter alia it was stated :

.... that the 1st respondent has followed the procedure contemplated under Section 24, Cr. P.C. before awarding the panels to the 2nd respondent-Government. I submit that the 1st respondent in consultation with the Metropolitan Sessions Judge, the 3rd respondent, prepared the panel of names of the persons fit to be appointed as Public Prosecutors and Addl. Public Prosecutors and sent the same to the 2nd respondent-Government. The contention of the petitioners that except two or three advocates whose names were included in the panel, the other advocates figuring in the panels have no experience of conducting Sessions cases including trials, appeals and revision, is totally incorrect and false. The petitioners are put to strict proof of the said allegation. The other allegation that some of the advocates whose names are figures in the panels have never been in practice before the respective Courts at any point of time, is equally incorrect. I submit that the 3rd respondent in consultation with Add. Metropolitan Sessions Judge have prepared the panels as per the merit and eligibility and forwarded the same to the 1st respondent. In turn the 1st respondent has forwarded the said panels to the 2nd respondent-Government with the recommendations. I submit that the last respondent has followed the procedure contemplated under the Cr. P.C. in forwarding the panels to the 2nd respondent-Government.

The Metropolitan Sessions Judge himself filed an affidavit. It is stated therein :

... It is submitted and learnt that the Addl. Metropolitan Sessions Judge, after careful scrutiny have forwarded the panels and the then Metropolitan Sessions Judge after due consultation with the Addl. Metropolitan Sessions Judges of I, II, III and IV forwarded the same to the respondent No. 1; and the advocates whose names were recommended in the panels have rich experience in conducting trials before the Sessions Courts and their experience, merit and ability, integrity, were taken into account while including their names in the panels.

The learned single Judge allowed the writ petition by the reason of the impugned judgment relying on or on the basis of a Division Bench decision of this Court in V. Kishore Kumar v. State of A.P., (1991) 2 Andh LT 589.

SUBMISSIONS :

The learned Counsel appearing on behalf of the appellants would submit that the policy of reservation having been made applicable to SC/ST/BC/Women, etc., it was necessary for the authorities to know the background of the candidates. The learned Counsel would submit that an offer made by them pursuant to the notification issued by the Metropolitan Sessions Judge would not amount to soliciting a brief and thus no illegality can be said to have been committed. The desirability, as expressed by a Bench of this Court in V. Kishore Kumars case (1991 (2) Andh LT 589) (supra) may not be taken aid of for the purpose of invalidating otherwise a valid selection. The learned Counsel would point out that admittedly the II Additional Metropolitan Sessions Judge even did not issue any notification. But still then, the learned single Judge did not even consider that aspect of the matter.

The learned Government Pleader would submit that in this case all procedures have been followed.

Mr. Kannabhiran, the learned senior counsel appearing on behalf of the writ petitioner, on the other hand, would submit that admittedly applications are filed by the candidates irrespective of the fact as to whether a notification had been issued or not. Filing of such an application would amount to soliciting of work. Having regard to the requirement of the profession, the learned Counsel would contend, the traditional rule should be allowed to be upheld. Strong reliance in this connection has been placed on Harpal Singh Chauhan v. State of U.P., AIR 1999 SC 2436 : (1993 Cri LJ 3140).

FINDINGS :

Section 24 of the Code insofar as the same is relevant for the purpose of this case reads thus :

Public Prosecutors :- (1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.

(2) The Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case or class of cases in any district, or local area.

(3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more additional Public Prosecutors for the district.

Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district.

(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district.

(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutors for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4).

The procedure for appointment of Law Officers is governed by the A.P. Law Officers (Recruitment, Conditions of Service and Remuneration) Rules, 1967. Several Government orders in this behalf have also been issued. However, in supersession of those Government orders and the aforementioned 1967 Rules, the Andhra Pradesh Law Officers (Appointment and Conditions of Service) Rules, 1999 were made by reason of G.O.Ms. No. 118 (Law (L)) Department, dated 28-6-1999.

Rule 5 of the said Rules provides for appointment of Law Officers in the District Courts and City Courts, subordinate to the High Court whereas Rule 6 lays down that Public Prosecutors, Additional Public Prosecutors and Special Public Prosecutors shall be appointed as per the provisions of Section 24 of the Code of Criminal Procedure, 1973.

However, recently the State had issued G.O.Ms. No. 187 Law (L) Department, dated 6-12-2000 making the Andhra Pradesh Law Officers (Appointment and Conditions of Service) Instructions, 2000. Law Officer has been defined in Instruction 2(iv) to mean a Government Pleader or an Assistant Government Pleader or a Public Prosecutor or Additional Public Prosecutor or Special Public Prosecutor or a Special Counsel. The vires of the said rules is not in question. A Public Prosecutor is appointed for a period of three years. The same procedures are required to be followed when his term is to be renewed if any. From a perusal of the aforementioned instructions it appears that the District Collector is the recommending authority. He has to make such recommendations upon ascertaining the views of the concerned District and Sessions Judge. The District and Sessions Judge is required to obtain bio-data from the advocates whom he considers to be fit for appointment and send a panel of eligible candidates on that basis without calling for bio-data from all the advocates having a particular standing.

It may not always be possible for the District and Sessions Judge to have enough time to know all the advocates who are fit to be appointed as Public Prosecutors. He, therefore, may be entitled to consult his colleagues particularly when Additional Public Prosecutors are required to be appointed in their Courts also.

Before such recommendations are made the District and Sessions Judges and his colleagues, appear to have called for applications for making the things more transparent. It is true that the post of the Public Prosecutor occupies a high position in the scheme of criminal justice delivery system. His honesty, impartiality, firmness and other qualities will have to be taken into consideration.

In Harpal Singh Chauhans case (1993 Cri LJ 3140), the Apex Court observed :

The Code prescribes the procedure for appointment of Public Prosecutor and Additional Public Prosecutor, for the High Court and the District Courts by the State Government. The framers of the Code were conscious of the fact, that the Public Prosecutor and the Additional Public Prosecutor have an important role, while prosecuting, on behalf of the State, accused persons, who are alleged to have committed one or the other offence. Because of that, provisions have been made for their selection in the Code. It is for the Sessions Judge to assess the merit and professional conduct of the persons recommended for such appointments and the District Magistrate to express his opinion on the suitability of persons so recommended, from the administrative point of view. Sub-section (5) of Section 24 provides that no person shall be appointed by the State Government as the Public Prosecutor or as an Additional Public Prosecutor "unless his name appears in the panel of names prepared by the District Magistrate under S. 4". The aforesaid section requires an effective and real consultation between the Sessions Judge and the District Magistrate, about the merit and suitability of person to be appointed as Public Prosecutor or as an Additional Public Prosecutor. That is why it requires, a panel of names of persons, to be prepared by the District Magistrate in consultation with the Sessions Judge. The same is the position so far the Manual is concerned. It enumerates in detail, how for purpose of initial appointment, extension or renewal, the District Judge who is also the Sessions Judge, is to give his estimate of the quality of the work of the Counsel from the judicial standpoint and the District Officer i.e. the District Magistrate is to report about the suitability of such person, from administrative point of view.

The Public Prosecutors and the Additional Public Prosecutors do not hold office of profit under the State. By reason of their appointment they do not accept any service under the State. But would that by itself be an embargo for calling for an application True it may be that the ideal course would have been for the District and Sessions Judges to identify those advocates, having regard to their personal experience, whom they think fit to be appointed in the said posts and call for the bio-data.

But the sole question, which arises for consideration, is as to whether offering of the services by the candidates would amount to violation of Rule 36 of the Bar Council Rules. Rule 35 reads thus :

An advocate shall not solicit work or advertise, either directly or indirectly, whether by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing or inspiring newspaper comments or producing his photographs to be published in connection with cases in which he has been engaged or concerned. His sign-board or name-plate or stationery should not indicate that he is or has been President or Member of a Bar Council or of any Association or that he has been associated with any person or organisation or with any particular cause or matter or that he specialises in any particular type of worker or that he has been a Judge or an Advocate General.

The advocates did not file any applications on their own. Such applications were called for. They merely offered their services. By reason of that only, in our opinion, it cannot be said that they had solicited work.

In D. R. Venkatachalam v. Dy. Transport Commissioner, AIR 1977 SC 842 [LQ/SC/1976/490] , it has been held :

Public law, in our piebald economy and pluralist society responds to societal challenges and constitutional changes. To miss the ideological thrust of our Constitution and the economic orientation of our nation while construing legislation relating to public law and scanning them for their validity is to fail in understanding the social philosophy that puts life and meaning into the provisions of the Act. The law, being realistic, reckons with the socialist sector covering State and co-operative enterprises.

In V. Kishore Kumars case (1991 (2) Andh LT 589) (supra), whereupon the learned single Judge has placed strong reliance was a matter where the District and Sessions Judge, Adilabad invited bio-data from the advocates having not less than ten years standing at the Bar for being considered for inclusion of their names in the panel for appointment to the post of Special Public Prosecutor. However, when a panel was sent to the Government, it appointed one of the advocates in the panel as an Additional Public Prosecutor for which post standing of not less than seven years would be sufficient. The appellant therein contended that had the District and Sessions Judge invited bio-data for appointment to the post of Additional Public Prosecutor, he would have applied as he had seven years standing at the Bar and he was deprived the opportunity of making an application.

In the abovementioned backdrop it was held :

In our view, the provisions of Sec. 24 do not prescribe that the District and Sessions Judge should notify to the Bar Association and receive bio-data or applications from advocates who are desirous of being included in the panel for the appointment of Public Prosecutor. No doubt, in practice, it appears to us that several District and Sessions Judges are issuing notifications calling upon advocates with particular standing to submit their bio-data for being considered for inclusion in the panel of names for appointment as Public Prosecutors. In our view, such practice has to be deprecated not only because it is not sanctioned by Sec. 24 but also because for appointment of a professional person for rendering service to the State, no advocate can, under the rules made under Sec. 49(1)(c) of the Advocates Act, 1961 by the Bar Council of India, apply for appointment or solicit work. Rule 36 of the Rules framed by the Bar Council clearly states that an advocate shall not solicit work or advertise, either directly or indirectly, whether by circulars, advertisements, touts, personal communications, etc. It has also been held by Chinnappa Reddy, J. (as he then was) in Krishnavataram v. State of A.P. (1969 (2) APLJ 325).

Now, a Public Prosecutor is appointed by the Government in exercise of powers under Sec. 492 of the Criminal Procedure Code. The choice is that of the Government and none can claim a right to be appointed. That must necessarily be so because it is a position of great trust and confidence.

In that context, it would not be proper for the District and Sessions Judges to issue notification inviting bio-data from the Advocates for consideration of being included in the panel for the appointment of Public Prosecutor. That would indirectly amount for asking the Advocates to solicit work from the State. The proper procedure in our opinion would be for the District and Sessions Judges to obtain bio-data from such of the advocates whom they consider to be fit for appointment as Public Prosecutor and send a panel of eligible candidates on that basis rather than call for bio-data from all advocates having a particular standing.

The Division Bench did not say that calling for an application by the District and Sessions Judge would be illegal although the same not be proper. The division bench did not set aside the appointment of Additional Public Prosecutor for the Court of Additional District and Sessions Judge, Adilabad. Those observations were made in the context of what should be a fair procedure vis-a-vis the right of a person to be appointed in the said post.

It is now well known that a decision should not be read as a statute. It has to be read in its entirety and reasonably.

It is also well known that judgment of a Court is not to be read as a statute. In General Electric Co. v. Renusagar Power Co., (1987) 4 SCC 137 [LQ/SC/1987/570] , it was held :-

"As often enough pointed by us, words and expressions used in a judgment are not to be construed in the same manner as statutes or as word and expressions defined in statutes. We do not have any doubt that when the words, adjudication of the merits of the controversy in the suit were used by this Court in State of U.P. v. Janki Saran Kailash Chandra, the words were not used to take in every adjudication which brought to an end the proceeding before the Court in whatever manner but were meant to cover only such adjudication as touched upon the real dispute between the parties which gave rise to the action. Objections to adjudication of the disputes between the parties, on whatever ground, are in truth not aids to the progress of the suit but hurdles to such progress. Adjudication of such objections cannot be termed as adjudication of the merits of the controversy in the suit. As we said earlier, a broad view has to be taken of the principles involved and narrow and technical interpretation which tends to defeat the object of the legislation must be avoided."

Dias on Jurisprudence at page 139 observed that :

What is law in a precedent is its ruling or ratio decidendi, which concerns future litigants as well as those involved in the instant dispute. Knowing the law in this context means knowing how to extract the ratio decidendi from cases. Statements not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. Three shades of meaning can be attached to the expression ratio decidendi; the first, which is the translation of it, is the reason for (or of) deciding. Even a finding of fact may this sense be the ratio decidendi. Thus a Judge may state a rule and then decide that the facts do not fall within it. Secondly, it may mean the rule of law preferred by the Judge as the basis of his decision; or thirdly, it may mean the rule of law which others regard as being a binding authority. .... There is temptation to suppose that a case has one fixed ruling which is there and discoverable here and now and once and for all. This is not so, for the ratio is not only the ruling given by the deciding Judge for his decision, but any one of a series of rulings as elucided by subsequent interpretations. The pronouncement of the Judge who decided the case is a necessary step towards ascertaining the ratio, but the process by no means ends there, subsequent interpretation is at least as significant, sometimes moreso.

In State of Punjab v. Baldev Singh, AIR 1999 SC 2378 [LQ/SC/1999/619] : (1999 Cri LJ 3672), after referring to C.I.T. v. Sun Engineering Works (P) Ltd., (1992) 4 SCC 363 [LQ/SC/1992/634] : (1992 AIR SCW 2600 : AIR 1993 SC 43 [LQ/SC/1992/634] ), it was held that a decision is an authority for what it decides and not that everything said therein constitutes a precedent. The Courts are obliged to employ an intelligent technique in the use of precedents bearing it in mind that a decision of the Court takes its colour from the questions involved in the case in which it was rendered.

Recently in Bharathidasan University v. A.I.C.T.E., (2001) 6 Scale 429 [LQ/SC/2001/2169 ;] ">(2001) 6 Scale 429 [LQ/SC/2001/2169 ;] [LQ/SC/2001/2169 ;] : (AIR 2001 SC 2861 [LQ/SC/2001/2169 ;] ">AIR 2001 SC 2861 [LQ/SC/2001/2169 ;] [LQ/SC/2001/2169 ;] ), it has been held that merely activated by some assumed objects or desirabilities, the Courts cannot adorn the mantle of Legislature.

Interpretation of law depends upon the need in the society. The Courts must take notice of the changes in it. What at one point of time might be possible may not be possible in a changed situation. In old days the District and Sessions Judge having regard to the strength of the Bar presumably knew almost all the advocates. Now he may not. Even if he knows the advocates, he may not know their background. He may not know the class or caste to which they belong. He may not know as to whether he is entitled to be appointed as Public Prosecutor/Additional Public Prosecutor in the reserved category.

Calling for bio-data is not prohibited. Calling for applications for the purpose of giving greater transparency is merely an extension of the said rule. The same by itself, in our opinion, however, would not debar the District and Sessions Judge to identify candidates on his own even if somebody does not apply pursuant to such notification and asks for his bio-data in terms of Rule 5 of the said Rules. Socio-economic conditions have also undergone a change. Having regard to the globalisation of economy, a debate is going on as to whether profession should be treated to be a business and advertisement in limited form would be permitted. Such limited advertisement is permitted in United States of America. Even in the television programmes, the advocates are extensively interviewed and are introduced as constitutional experts or experts in criminal law, etc. Such programmes in television are viewed by millions across the country. Taking part in such programme directly may not amount to advertisement although indirectly it may be.

Furthermore, there has been a growing demand of accountability on the part of the judicial officers even in making recommendations. Certain posts only are excluded from the purview of calling for application as has been held by the Supreme Court in B. S. Minhas v. Indian Statistical Institute, AIR 1984 SC 363 [LQ/SC/1983/296] , wherein it has been held :

The members of the Selection Committee as also the members of the Council were eminent persons and they may be presumed to have taken into account all relevant considerations before coming to a conclusion. But the real difficulty is that in the absence of publicity as contemplated by bye-law 2, it cannot be said that all other qualified persons like the petitioner were also considered by the Selection Committee for appointment, in the absence of any application by them for the post or any recommendation of them by any other authority or individual.

The matter relating to termination of the law officers is also subject matter of several litigations. (See Srilekha Vidyarthi v. State of U.P., (1991) 2 SCC 212 : 1991 SCC (L&S) 742 : (AIR 1991 SC 537 [LQ/SC/1990/571] ) and State of U.P. v. U.P. State Law Officers Asso., (1994) 2 SCC 204 [LQ/SC/1994/117] : (AIR 1994 SC 1654 [LQ/SC/1994/117] ). What is prohibited is only a back door appointment and not an appointment of this nature.

Furthermore, one aspect of the matter may not be lost sight of. As contra-distinguished from the appointment of the High Court Judges in terms of Article 217 of the Constitution as interpreted by the Supreme Court in Special Reference No. 1 of 1998, RE, AIR 1999 SC 1 [LQ/SC/1998/1054] , is that the judiciary in the matter of appointment of Law Officers of the State has no primacy. Appointment to the post of Public Prosecutor has to be made by the State. For such appointment recommendations are required to be made by the District Collectors. Only in the process of recommendation the District Collector is required to consult the District & Sessions Judge. Such consultation has a limited role to play. The same, in a situation of this nature, would not mean concurrence. It is for the District Magistrate not to make recommendation even of the advocates whose names find place in the panel sent by the District & Sessions Judge. Even the recommendations made by the District Collector may not be accepted by the State. Substantial compliance of the rule, which is directory, would serve the purpose.

Having regard to the aforementioned situation and keeping in view the changed scenario, we are of the opinion, filing of application, pursuant to a notification issued by the metropolitan Sessions Judge, by the Advocates offering their services for the post of Public Prosecutor and Additional Public Prosecutor would not by itself amount to solicitation of work within the meaning of Rule 36 of the Rules. It is not correct to say that applications are required to be invited only when somebody intends to join the service. Invitation of applications may be necessary for several purposes including obtaining the bio-data of the candidates. In any event, we are of the opinion that even if the same amounts to misconduct, having regard to the doctrine of fairness, the procedure adopted for appointments cannot be said to be invalid inasmuch as the procedure adopted for the said purpose had been accepted by the State to be a fair one.

In view of the aforementioned reasons, the Writ Appeals are allowed. There shall be no order as to costs.

Appeal allowed.