Mallaraddi H. Itagi v. High Court Of Karnataka, Bangalore

P. VISHWANATHA SHETTY, J.

( 1 ) PETITIONERS in this batch of nine writ petitions (in Writ Petition Nos. 47330 to 47338 of 2001) are either Assistant Public Prosecutors or Senior assistant Public Prosecutors or Public Prosecutors who are in the services of the second respondent-State. The petitioners in the tenth writ petition (in Writ Petition No. 47339 of 2001) claims to be an association of Law Officers formed by the Public Prosecutors and other Law officers in the State of Karnataka.

( 2 ) THE petitioners in these petitions are aggrieved by the decision taken by the Committee constituted by the first respondent-High Court for the purpose of considering the case of the applicants for appointment to the post of District Judges, wherein the Committee has taken a decision that the Assistant Public Prosecutor/senior Assistant Public Prosecutor/ public Prosecutor are not eligible to be considered for recruitment to the post of District Judges.

( 3 ) THOUGH these petitions are listed for orders, with the consent of learned Counsels appearing for the parties, these petitions are taken up for final hearing and disposed off by this order.

( 4 ) FACTS in brief, which are not in serious dispute, may be stated as hereunder;

( 5 ) THE first respondent by means of its notification dated 11th October, 2000 called for applications for appointment of 14 practising Advocates by direct recruitment as District Judges. In pursuance of the said notification, the petitioners 1 to 9 had applied for the post of District Judges, and thereafter on the communication issued by the first respondent directing them to appear for the written examination all of them had appeared for the written examination held on 10th June, 2001. On 3rd December, 2001, the first respondent put up a memo, a copy of which has been produced as Annexure-C to the writ petitions, on the notice Board declaring the results of the written examination and indicating the candidates who are eligible to appear for viva voce to be conducted from 3rd January, 2002. In Annexure-C, however, it was also notified that the petitioners 1 to 9 are not eligible to be called for viva voce, on the ground that they are working as Assistant Public Prosecutors/senior Assistant Public Prosecutors and Public Prosecutors and they were not practising Advocates as on the last date fixed for submission of their applications. Thereafter, by means of another communication dated 18th December, 2001 the petitioners 1 to 9 were informed that they were not eligible to be considered for recruitment to the post of district Judges. Aggrieved by the said decision of the first respondent, those writ petitions have been filed. In these petitions, this Court on 28th December, 2001 made an interim order directing the first respondent to permit the petitioners 1 to 9 to participate in the viva voce and also further directed the first respondent not to announce the result of the petitioners 1 to 9 without the leave of the Court. In terms of the interim, order granted by this Court, the petitioners 1 to 9 were permitted to appear for the viva voce commencing from 3rd January, 2002.

( 6 ) DURING the pendency of these petitions, the petitioners filed an application seeking for amendment of the petitions praying for a declaration that the communication dated 18th December, 2001 issued to the petitioners 1 to 9, as illegal and unconstitutional. The statement of objections were filed on behalf of the first respondent both to the main petition and also for the additional grounds raised by the petitioners.

( 7 ) SRI R. N. Narasimhamurthy, learned Senior Advocate appearing along with Sri Harish for AAEEN Associates, made two submissions firstly, he submitted that the view taken by the first respondent that the, Assistant Public Prosecutors, Senior Assistant Public Prosecutors and Public Prosecutors are not practising Advocates is erroneous in law. Elaborating this submission, the learned Counsel pointed out that the petitioners 1 to 9 were enrolled as Advocates and were practising as advocates till their appointment as Assistant Public Prosecutors and since all of them are appearing before the Courts, all of them must be considered as practising Advocates. He further submitted that the case of the petitioners 1 to 9 falls within the exception provided under Rule 49 of the Bar Council of India Rules which enables the petitioners 1 to 9 continue to practice in the Court; and therefore, it must be held that the petitioners 1 to 9 are practising Advocates notwithstanding the fact they were recruited as Assistant Public Prosecutors/senior Assistant Public prosecutors/public Prosecutors. In support of his contention, he relied upon the decision of the Honble Supreme Court in the case of Sushma suri v Government of National Capital Territory of Delhi and Another. It is also his submission that the Honble Supreme Court in the case of sushma Suri, supra, has, under similar circumstances taken the view that the Law Officers of Central or State Government, Public Corporation or a Body Corporate or Public Prosecutor who are enrolled as Advocates fall under exception to Rule 49 of the Bar Council of India Rules and therefore they are eligible to be considered for recruitment as District Judges. The learned Counsel also tried to make a distinction between the surrender of the Certificate of Practice by an Assistant Public prosecutor to the State Bar Council consequent upon his appointment as assistant Public Prosecutor and his removal from the Rolls of the State bar Council. According to him, the surrender of Certificate of Practice does not result in removal of the name of an Advocate from the Rolls of the State Bar Council, and therefore, so long as the name of an Advocate continues on the Rolls of the State Bar Council, such a person must be considered as a practising Advocate. According to him, this question having been considered by the Honble Supreme Court in the case of sushma Suri, supra, it is not permissible for the respondents to deprive the petitioners 1 to 9 of their right for being considered for appointment to the post of District Judge. It is his submission that the decision taken by the first respondent taking the view that the petitioners 1 to 9 are not eligible to be considered for appointment is totally illegal, arbitrary and runs counter to Article 233 (2) of the Constitution of India. Secondly, he submitted that if for any reason it is to be held that the petitioners 1 to 9 are not practising Advocates on the date of submission of their application to the first respondent in terms of the Schedule given to Rule 2 of "the Karnataka Judicial Services (Recruitment) Rules, 1983" (hereinafter referred to as "rules"), the provisions in the Schedule 2 given to the Rule which prescribes the qualification that the applicant "must be practising on the last date fixed for submission of application as an advocate and must have so practised for not less than 7 years as on such date" is liable to be struck down as being contrary to the provisions contained in sub-clause (2) of Article 233 of the Constitution of India and also on the ground it is highly arbitrary, unreasonable and violative of rights guaranteed to petitioners 1 to 9 under Article 14 of the Constitution of India. He further pointed out that when sub-clause (2) of Article 233 of the Constitution enables an Advocate who has put in 7 years of practice to be considered for appointment as a District Judge, it is not permissible for the rule making authority to prescribe higher qualification or eligibility criteria than the one prescribed in the Constitution. In support of this submission, the learned Counsel also relied upon the decision of the Honble Supreme Court in the case of Rameshwar Dayal v State of Punjab and Others, and referred to us the observation made by the Honble Supreme Court at paragraphs 5, 6, 8, 12 and 14 of the judgment. It is the submission of the learned Counsel, when the Honble supreme Court in the case of Rameshwar Dayal, supra, has taken the view while interpreting the provisions of the Constitution that 7 years of practice as an Advocate would be sufficient and one need not be a practising Advocate on the date of submission of his application, the decision of the Honble Supreme Court being binding on every one, the impugned rule to the extent it requires that an Advocate should be a practising advocate on the date of submission of his application is liable to be struck down as unreasonable and being contrary to the law laid by the honble Supreme Court.

( 8 ) HOWEVER, the learned Advocate General Sri A. N. Jayaram appearing for the respondents strongly countering each one of the submissions made by the learned Counsel appearing for the petitioners submitted that the decision of the Selection Committee consisting of Honble Chief justice and four Honble Judges taking the view that the Assistant public Prosecutors/senior Assistant Public Prosecutors/public Prosecutors are not eligible for appointment as District Judges is unexceptionable and does not suffer from any infirmity or illegality which calls for interference by this Court in exercise of its power under Articles 226 and 227 of the Constitution of India. He submitted that the view taken by the Committee in the backdrop of the rules made providing for recruitment to the post of District Judges cannot be held as either arbitrary or unreasonable or violative of any of the rights guaranteed to the petitioners. He pointed out that to the cadre of Assistant Public Prosecutors/senior assistant Public Prosecutors/public Prosecutors, the recruitment is made in terms of the provisions contained in the rule known as "the Karnataka Department of Prosecutors and Government litigation (Recruitment) Rules, 1962" (hereinafter referred to as "prosecutors Recruitment Rules") and since the petitioners 1 to 9 have been in the service of the State from the respective dates of their appointment as Assistant Public Prosecutors, they cannot be considered as practising advocates on the date of submission of their application to the first respondent. He further submitted that since Rule 49 under Section VII of the Bar Council of India Rules prohibits an Advocate to take up any full time employment under any person/government/corporation, so long as he continues to practice and is required, on taking of such an employment to intimate the said fact to the Bar Council on whose Roll his name appears; and thereupon he ceases to practice as an Advocate so long as he continues in such employment. The petitioners 1 to 9 who are admittedly recruited as Assistant Public Prosecutors/senior Assistant public Prosecutors/public Prosecutors, have in terms of the said rule statutorily ceased to be practising Advocates and as such they are not eligible to be considered for appointment as District Judges. It is his submission that the exception provided under Rule 49 of the Rules has 10 application so far as the case of the petitioners 1 to 9 are concerned, and it would only apply to the case of an Advocate who by terms of his appointment order is appointed as Law Officer of the Central government or a State Government or of any public Corporation for the purpose of acting/pleading in Courts on behalf of his employer though such in Advocate is full time salaried employee. According to the learned advocate General, as per the terms and conditions of the service of the petitioners 1 to 9, they could be given different postings other than the one of appearing before the Courts. According to him, the decision of the honble Supreme Court in the case of Sushma Suri, supra, has no bearing to the case of the petitioners. He pointed out that the Government advocates whose cases were considered by the Honble Supreme Court are similar to the Law Officers appointed by the Government of karnataka in terms of the provisions contained in the rules known as

"karnataka Law Officers (Appointment and Conditions of Service) Rules, 1977 to argue the case of the State before the Courts; and it is not akin to the case of the petitioners 1 to 9. Therefore, it is his submission that the reference made by the Honble Supreme Court to Rule 49 of the Bar council of India Rules in support of the conclusion that even if such government Advocates/public Prosecutors are full time salaried Advocates, they are qualified to be considered for appointment as District judges, cannot be understood as the Honble Supreme Court laying down the law that the full time employees like petitioners 1 to 9 who are in the State service are also eligible for appointment as District Judges. Be farther submitted that the law laid down by the Honble Supreme court has to be understood in the backdrop of the rule which provided for recruitment to the "delhi Higher Judicial Services" and since the rule framed by the second respondent clearly mandates that an Advocate should be a practising Advocate on the date of the submission of his application, the observation made in the said decision has no applicant, to the case of the petitioners 1 to 9 to take the view that they are practising Advocates on the date of submission of their applications. He further submitted that the letter dated 10th April, 2001 written by the joint Director of Prosecution, Bangalore, to the Registrar General, High court of Karnataka, a copy of which has been produced as Annexure-R1, clearly indicates that the Advocates who were appointed as Assistant public Prosecutors were required to stop practice and return the Certificate of Practice to the Bar Council in terms of the Bar Council of India rules; and accordingly the petitioners in Writ Petition Nos. 47330, 47333, 47334 and 47336 of 2001, had surrendered the Certificate of practice to the Karnataka State Bar Council and suspended their practice. He also referred to us the letter dated 7th February, 2002, a copy of which has been produced as Annexure-R2 written by the Secretary to the Karnataka State Bar Council to the Government Advocate wherein it is stated that the petitioners in Writ Petition Nos. 47330, 47331, 47333, 47335 to 47338 of 2001 had suspended their practice with effect from various dates referred in Annexure-R2. Therefore, it is his contention that when there is a statutory bar to an Advocate who takes up a full time employment as Assistant Public Prosecutor to continue to practice; and the materials on record shows that the petitioners had surrendered their Certificates of Practice to the Karnataka state Bar Council, it is not permissible for the petitioners 1 to 9 to contend that they are practising Advocates on the date of submision of their applications. He also referred to us the decision of Honble supreme Court in the case of Satish Kumar Sharma v Bar Council of himachal Pradesh , and drew our attention to the observation made by the Honble Supreme Court at paragraphs 5, 17 and 21 of the judgment. Further, meeting the second submission of Sri R. N. Narasimhamurthy, the learned Advocate General submitted that the qualification prescribed under sub-clause (2) of Article 233 of the Constitution of India is only a minimum qualification or eligibility fixed; and it is always permissible for the Rule making Authority to prescribe a higher qualification] than the one prescribed under the provisions of the Constitution. In support of this submission, he relied upon a Division Bench decision of this Court in case of Ramanagouda Hanumanthagouda Patil v High court of Karnataka, and the decision of the Rajasthan High Court in case of Munni Lal Garg v State of Rajasthari"

( 9 ) IN the light of the rival contentions advanced by the learned Counsels appearing for the parties, the two questions that would arise for our consideration in these petitions are:

(I) Whether the petitioners 1 to 9 were practising Advocates on the date of the submission of their applications to the first respondent and as such were eligible to be considered for appointment as District Judges in terms of the qualification prescribed under Schedule given to Rule 2 of the Rules

(II) Whether the qualification prescribed in Schedule given to rule 2 of the Rules that an applicant "must be practising on the last date fixed for submission of application, as an Advocate and must have so practised for not less than seven years as on such date" is liable to be struck down either on the ground that it runs counter to the provisions contained in sub-clause (2) of Article 233 or 14 of the Constitution of india re. Question No. (i):

( 10 ) IT is not in dispute that the petitioners 1 to 9 are presently working as either Assistant Public Prosecutors or Senior Assistant public Prosecutors or Public Prosecutors. The Governor of Karnataka, by means of notification dated 26th June, 1982 sanctioned the establishment of State Civil Service Cadre in respect of department of Prosecution Service. The strength of each of the cadre and number and character of each post is set out in the notification. In the said notification, 100 permanent and 33 temporary posts of Assistant Public Prosecutors in the pay scale of Rs. 1050-50-1200-60-1500-75-1950; 30 permanent and 39 temporary posts of Senior Assistant Public Prosecutors in the pay scale of Rs. 1200-60-1500-75-2175; and 5 permanent and 33 temporary posts of Public Prosecutors in the pay scale of Rs. 1725-75-2250-100-2350 were created.

( 11 ) THE Recruitment Rules of the Assistant Public Prosecutors/senior assistant Public Prosecutors/public Prosecutors framed by the second respondent provides for the method of recruitment and minimum qualification prescribed to the post of Assistant Public Prosecutors/senior assistant Public Prosecutors/public Prosecutors. As it could be seen form the qualification prescribed under the Rules as set out in the schedule, the appointment to the post of Public Prosecutors is made by way of promotion by way of selection after interview from among the senior Assistant Public Prosecutors who have put in not less than. 3 years of service in the cadre of Senior Assistant Public Prosecutors. However, Recruitment Rules farther provide that if no suitable candidate is available for promotion in terms of the qualifications prescribed, the appointment of Public Prosecutor, could be made from the panel of names prepared by the District Magistrate under sub-section (4) of Section 24 of the Criminal Procedure Code for such period not exceeding two years as may be specified in the order of appointment. The note given to the Schedule further provides that a Public Prosecutor when posted to work at a place other than the Court shall be called as Deputy director of Prosecutions. This indicates that a Public Prosecutor also could be posted to work at a place other than a Court. The appointment to the post of Senior Assistant Public Prosecutors is made by promotion from the cadre of Assistant Public Prosecutor who have put in not less than five years of service in the cadre of Assistant Public Prosecutor. The note given to the Schedule also further provides that a Senior Public prosecutor when posted to work at a place other than a Court shall be called as Assistant Director of Prosecution. This also indicates that the senior Assistant Public Prosecutor could be posted to work at a place other than a Court. The appointment of the post of Assistant Public prosecutors is made by way of direct recruitment. The qualification prescribed for direct recruitment provides that the candidate must be a holder of degree in law and must be practising as an Advocate in Courts of Civil and Criminal Jurisdiction in India and must have so practised for not less than 3 years on the last date fixed for submission of applications. Thus, it is seen that a practising Advocate who has put in not less than 3 years of practice on the last date fixed for submission of applications is eligible to be considered for appointment as Assistant Public prosecutor; and it is only from the cadre of Assistant Public Prosecutor, senior Assistant Public Prosecutors are appointed by way of promotion; and from the cadre of Senior Assistant Public Prosecutors, Public prosecutors are appointed by way of promotion. It is not in dispute that all the petitioners are Government servants who are in the employment of second respondent and they are subject to disciplinary proceedings by the State Government. As noticed by us earlier, the Senior Assistant public Prosecutors and Public Prosecutors could be posted to work in a slace other than Courts and when they are so posted, they are respectely called as Assistant Director and Deputy Director of Prosecutions. Therefore, their nature of work need not be always before the Court. Having regard to the nature of appointment of Assistant Public Prosecutors; Senior assistant Public Prosecutors and Public Prosecutors made in terms of the recruitment rules which provide for their appointment and the nature of work they are required to discharge, and conditions of their service, in our view, it is not possible to take the view that main provision in Rule 49 of the Bar Council of India Rules will not apply to them and they fall under the category of "law Officers" of the State government who dont cease to practice even when they are full time salaried employees of the State Government. In our view the petitioners 1 to 9 are only Civil Servants in the employment of the State and they cannot be treated as practising Advocates from the date of their appointment to the post of Assistant Public Prosecutors. As rightly pointed out by the learned Advocate General, it is only in the case of Law Officer of the Central Government or the State Government or a Public Corporation who is so designated by the terms of his/her appointment order and who by the terms of said appointment order required to act and/or plead in Courts on behalf of his/her employer is not required to intimate the fact of his appointment to the State Bar Council and would not cease to practice as an Advocate. That is not the position in the case of the appointment of Assistant Public Prosecutors/senior Assistant Public prosecutors/public Prosecutors. The facts of this case indicates, as noticed by us earlier, the petitioners in Writ Petition Nos. 47330, 47331, 47:133 to 47338 of 2001 have surrendered their Certificate of Practice to the Karnataka State Bar Council and voluntarily suspended their practice. It is not the case of the petitioner in Writ Petition No. 47332 of 2001 that he has not surrendered his Certificate of Practice to the State bar Council and suspended his practice. Though the petitioners 1 to 9 in the writ petition assert that they are practising Advocates, they have not placed any material to substantiate their contention that their Certificate of Practice is current and they have not suspended their practice subsequent to their appointment as Assistant Public Prosecutors. Except placing reliance on the decision of the Honble Supreme Court in the case of Sushma Suri, supra, there is no factual foundation laid by the petitioners 1 to 9 to show that they continue to be practising Advocates on the date of submission of their applications for being considered for appointment as District Judges. Rule 49 of the Rules prohibits an advocate from being a full time salaried employee. The only exception made as observed by us earlier is that if an Advocate is appointed as a law Officer of the Central Government or State Government or any public Corporation and the order of appointment issued to such an Advocate designates him as a Law Officer and the terms of his appointment provides that he is required to act and/or plead in Courts on behalf of his employer, he could continue to be an Advocate. That is not the position in the case of appointment of petitioners 1 to 9. Therefore, in our view, the observation made by the Honble Supreme Court in the case of Sushma Suri, supra, has no application to the facts of the case of the petitioners 1 to 9. The petitioners 1 to 9 came to be appointed as assistant Public Prosecutors/senior Assistant Public Prosecutors/public prosecutors in terms of the Recruitment Rules framed by the State government. Therefore, in terms of the main provision contained in rule 49 of the Bar Council of India Rules, the petitioners on their appointment as Assistant Public Prosecutors ceased to be practising Advocates. Further, as noticed by us earlier, when once the petitioners had surrendered their Certificate of Practice and suspended their practice in terms of Rule 5 of the Bar Council of India Rules, it is not possible to take the view that they still continue to be practising Advocates. The rules which prescribe the qualification for appointment to the post of district Judges by direct recruitment provides that an applicant must be practising on the last date fixed for submission of application, as an advocate and must have so practised for not less than 7 years as on such date. The case of Sushma Suri, supra, does not deal with the situation where the Law Officers had surrendered the Certificate of Practice and suspended their practice. The facts of that case indicates that the honble Supreme Court proceeded on the basis that the exception provided to Rule 49 of the Rules applies to the Law Officers in that case inasmuch as the Law Officers in those cases were designated by terms of their appointment as Law Officers for the purpose of appearing before the Courts on behalf of their employers. Therefore, facts of those cases are different from the facts of the case of petitioners 1 to 9. The rule similar to the one before us which provides that an Advocate must be a practising Advocate on the date of the submission of the application did not fall for consideration before the Honble Supreme Court. The Delhi higher Judicial Services Rules, 1970 did not provide that an Advocate should be a practising Advocate on the date of submission of his application. Under these circumstances, in. our considered view, the observation made by the Honble Supreme Court in the case of Sushma Suri, supra, at paragraph 8 of the judgment which is strongly relied upon by the learned Counsel for the petitioners wherein it is stated that "for purposes of the Advocates Act and the Rules framed thereunder the Law officer (Public Prosecutor or Government Counsel) will continue to be an advocate. The intention of the relevant rules is that a candidate eligible for appointment to the higher judicial service should he a person who regularly. practices before the Court or Tribunal appearing for a client" has no application to the facts of the present case. As noticed by us, the qualification prescribed for Assistant Public Prosecutor is three years of practice as an Advocate on the date of submission of application. The qualification prescribed for recruitment to the post of Munsiff,. e. , Civil judge (Junior Division) is that an applicant, on the last date fixed for submission of application, must be a practising Advocate and must have practiced for not less than four years on the date of application; or who is working as an Assistant Public Prosecutor/senior Assistant Public prosecutor or as a Public Prosecutor in the Department of Prosecutions and must have so worked for not less than 4 years as on the date of application. Therefore, the Assistant Public Prosecutors/senior Assistant public Prosecutor/assistant Public Prosecutor are made eligible for appointment only to the post of Munsiffs (Civil Judge (Junior Division)) under the Recruitment Rules. But, they are not made eligible under the rules for appointment as District Judges. Therefore, when the Rule making Authority itself has not made the Assistant Public Prosecutor /senior Assistant, Public Prosecutor/public Prosecutor as eligible for appointment to the post of District Judges, it is not permissible to treat the Assistant Public Prosecutor/senior Assistant Public Prosecutor/public prosecutor as practising Advocates by judicial interpretation and by giving extended meaning to make them eligible for appointment to the post of District Judges. The Honble Supreme Court in the case of Satya narain Singh v High Court of Judicature at Allahabad and Others, while interpreting sub-clause (2) of Article 233 of the Constitution of India has taken the view that "a person not already in service of Union or of the State" shall mean only officers in judicial service and the Judicial officers who are already in service are not eligible for appointment in respect of the post reserved for direct recruitment under sub-clause (2) of Article 233 of the Constitution of India. Therefore, the Judicial officers who are in the State services are ineligible for appointment in respect of direct recruitment vacancies. However, if the argument of the learned Counsel for petitioners is accepted as correct, the Assistant Public prosecutor and Senior Assistant Public Prosecutor who are only made eligible under the Recruitment Rules to the post of Munsiffs which is the lowest cadre in the District Judiciary would be eligible for appointment to the post of District Judges in respect of the posts reserved for direct recruitment vacancies, In our view, the acceptance of such a position would lead to discrimination between the officers of the State who are in judicial services on the one hand and Assistant Public Prosecutors, Senior assistant Public Prosecutors and Public Prosecutors on the other. While considering the contention of the learned Counsel for the petitioners that the Assistant Public Prosecutor/senior Assistant Public Prosecutor/public prosecutors should be treated as practising Advocates, this court cannot ignore the consequence of resultant incongruous situation, if such an argument is accepted. We are also unable to accede to the submission of the learned Counsel for the petitioners that so long as the names of the petitioners 1 to 9 are not removed from the Rolls of State bar Council, the said petitioners would be practising Advocates. In our view, there is no merit in this submission. No doubt, Section 2 (a) of the advocates Act (hereinafter referred to as the "act") provides that "an advocate means an Advocate entered in any roll under the provisions of advocates Act". That does not mean the Advocate who has surrendered the Certificate of Practice to the State Bar Council and who has suspended his practice also can be treated either as an Advocate or as a practising Advocate. May be that once a Law graduate enrolls himself as an Advocate, his name finds a place in the Rolls of the State Bar Council till it is removed from the Rolls of the State Bar Council in terms of clause (d) of sub-section (3) of Section 35 of the. But, that does not mean a person who has suspended his practice on securing a full time appointment can still be considered as a practising Advocate. This conclusion of ours gets support from the sub-section (4) of Section 35 of the act wherein it is provided that where an Advocate is suspended from practice, during the period of suspension he is debarred from practising in any Court or before any authority or person in India. Therefore, if the object of surrendering Certificate of Practice and suspending the practice is to give up the right to practice before the Court; the petitioners 1 to 9 who were required to surrender the Certificate of Practice and who have so suspended their practice, cannot in our view, be held either as advocates or as practising Advocates. In our view, during the period of suspension of practice, such a person ceases to be an Advocate; and continuance of his name on the Rolls of Bar Council is of no consequence so far as his right to practice is concerned and such a person cannot designate himself as an Advocate. Therefore, we are of the view that the petitioners 1 to 9 not being practising Advocates on the date of submission of their applications, they are not eligible for appointment as District judges in terms of the qualification prescribed. Therefore, the selection Committee has, in our view, rightly rejected the claim of the petitioners 1 to 9 for appointment as District Judges and they were rightly not called for interview. The petitioners cannot have any grievance on that account. Re. Question No. (ii):

( 12 ) THE next question is, whether the impugned rule which prescribes the qualification that an applicant for consideration of his claim for appointment as a District Judge "must be practising on the last date fixed for submission of his application as an Advocate and must have so practiced for not less than 7 years as on such date" is liable to be struck down We are unable to accept the submission of learned Counsel for the petitioners that the impugned rule is liable to be struck down either on the ground that it is not permissible for the Rule making Authority to prescribe a higher qualification than the one prescribed under sub- clause (2) of Article 233 of the Constitution of India or on the ground that the qualification prescribed is violative of the rights guaranteed to the petitioners 1 to 9 under Article 14 of the Constitution of India. In our view sub-clause (2) of Article 233 of the Constitution of India only prescribes the minimum qualification. In other words no one who has not put in 7 years of practice as an Advocate is eligible for appointment as a district Judge. Neither the High Court nor the Rule making Authority can relax the said minimum qualification prescribed under sub-clause (2) of Article 233 of the Constitution of India. However, that does not mean that the Appointing Authority keeping in mind the larger public interest and efficiency and excellence in administration of justice cannot prescribe a higher qualification for appointment to the post of District judge than the one prescribed in sub-clause (2) of Article 233 of the constitution of India. The words "not less than 7 years as an Advocate" employed in Article 233 of the Constitution clearly indicates that what is prescribed is the minimum qualification and it does not prevent the Rule making Authority from prescribing higher qualification. The post to which the appointment is being made is the highest judicial position in the District Judiciary. Under these circumstances, it would be totally wrong to place a very narrow and pedantic construction on the provisions of the Constitution and take away the power of Rule making authority which intends to ensure better, qualified and well-equipped advocates to get into judicial service as District Judges. This Court in the case of Ramanagouda Hanumanthagouda Patil, supra, while considering the question whether it is permissible for the Selecting Authority , to short list the list of applicants and limit the persons to be called for I interview by prescribing higher qualification than the one prescribed under the rules has taken the view that it is permissible. It is useful to refer to paragraphs 10 and 11 of the judgment which reads as hereunder:

"10. The applications are for selection to the higher judicial service, who exercise judicial power of the State and who are holders of public office. Having regard to the importance of the post and the nature of duties to be discharged on being selected as District judges, and the experience and knowledge required, the Committees decision to call only those candidates who have put in ten years of practice cannot be said to be unreasonable or irrational. Article 233 of the Constitution of India and the rules merely prescribe the minimum period of practice for being appointed as District judges. They do not prohibit the Committee interviewing only those with a longer period of practice. 11. The second criterion regarding income, ensures that only persons with a sufficiently reasonable practice are called for interview. Income from profession is a clear indication of volume of practice. Merely being an Advocate for several years, without active and adequate practice, cannot entitle an applicant to be selected to the higher judicial service. Legal knowledge and experience as a legal practitioner are absolutely necessary for being selected to the higher judicial service. Normally income from profession is linked to practice and practice is linked to knowledge and experience. It may be true that quantum of income need not necessarily always show that calibre and capacity of a practising Advocate; but it cannot be doubted that it will normally indicate a reasonable amount of practice as an Advocate".

( 13 ) IF it is permissible as laid down by this Court in the case of ramanagouda Hanumanthagouda Patil, supra, for the Selection Committee to prescribe a higher qualification than the one prescribed under the Rules, we do not find any good ground to hold that the Rule making authority has no power to prescribe the higher qualification than the one prescribed in sub-clause (2) of Article 233 of the Constitution. In the impugned rule what is prescribed is that an applicant should be practising as an Advocate on the date of submission of his application and should have put in 7 years of practice on the date of application. In our view the qualification prescribed that the applicant should be a practising advocate on the date of the application cannot be considered as either arbitrary or unreasonable or discriminatory in nature or violative of the rights guaranteed to the petitioners 1 to 9 under Article 14 of the constitution of India. The object of the said rule is to ensure that an applicant should be familiar with the Court proceedings; the development of law and up-to-date knowledge of law when he seeks to be appointed as a District Judge. The said rule also intends to ensure that an advocate who intends to be appointed as a District Judge would also, in addition to acquiring legal knowledge, closely follows the well-built traditions and professional ethics that an Advocate and a Judicial Officer is required to follow. Experience would tell that the experience of the court proceedings and conducting of cases would help to produce better judicial Officers and Judges. Mere knowledge of law alone would not be sufficient to produce a highly suitable, a good and ideal Judicial Officer. In the decision making process, the experience of Court proceedings would go a long way in helping a Judge to reach correct conclusions. Therefore, if the Rule making Authority keeping in mind all these aspects and the nature of the discharge of judicial duty by the highest post in the District Judiciary has laid down the qualification that an applicant should be a practising Advocate on the date of application, such qualification, in our view, cannot be considered as either unreasonable or arbitrary. The object of the Rule is to pick up the best material and to eliminate the less qualified and less suitable at the threshold and at the stage of application itself. Therefore, we are clearly of the view that there is a direct nexus with the object sought to be achieved in the qualification prescribed. In our view the decision relied upon by the learned Counsel for the petitioners in the case of Rameshwar Dayal, supra, is of no assistance to support his contention that seven years of practice as an Advocate could be a sufficient qualification for appointment as District Judge. The said decision was rendered prior to coming into force of the Advocates Act and in the absence of the rule similar to the one before us which provides that an Advocate should be a practising advocate on the date of application. Therefore, we are of the view that the impugned rule is not liable to be struck down as contended by the learned Counsel for the petitioners.

( 14 ) IN the light of the above discussion made above these petitions are liable to be rejected. Accordingly, they are rejected. However, no order is made as to costs.