CASE NAME	Deepak Aggarwal v. Keshav Kaushik & Ors, (2013) 5 SCC 277
CITATION	CIVIL  APPEAL NO. 561 OF 2013
COURT	Supreme Court of India
BENCH	Hon’ble Justice R.M. Lodha, Justice Anil R. Dave and Justice Ranjan Gogoi
PETITIONERS	Deepak Aggarwal
RESPONDENT	Keshav Kaushik & Ors
DECIDED ON	decided on 21st January, 2013

FACTS OF THE CASE

Through its Registrar General, the Punjab and Haryana High Court, Chandigarh, sent a notification on May 18, 2007, soliciting applications for the employment of Additional District and Sessions Judges. Following the aforementioned notification, 64 candidates were recommended for interviews after written exams were administered. Following the interview, the High Court nominated 16 candidates, ranked according to merit, for direct recruitment to the Additional District and Sessions Judge position in the State of Haryana. Five of the appellants were among the 16 candidates recommended by the High Court. At the time of appointment, Rajesh Malhotra was employed as a public prosecutor in the Central Bureau of Investigation, Deepak Aggarwal was the Assistant District Attorney in Himachal Pradesh, Chandra Shekhar, and Desh Raj Chalia were the Assistant District Attorneys in the State of Haryana, and Dinesh Kumar Mittal was the Deputy Advocate General in the Advocate General’s office, Punjab. 

Following the High Court’s recommendation, the State of Haryana issued appointment orders. A few of the rejected applicants addressed the High Court with writ petitions arguing various grounds for objection. Nevertheless, the appointments of five appellants, who held the positions of deputy advocate general, public prosecutor, and assistant district attorney were revoked on the grounds that some of the candidates lacked the necessary experience and that they did not meet the requirements for recruitment as outlined in Article 233 of the Constitution.

ISSUES RAISED

• What does “the service” mean in Article 233(2) of the Indian Constitution? 
• What does Article 233(2) mean when it refers to an “advocate” or “pleader”? 
• Whether someone who works full-time for the government, is subject to state statutes, is appointed through the Public Service Commission, is a district attorney, additional district attorney, public prosecutor, assistant public prosecutor, or assistant advocate general, and is eligible to be appointed to the position of district judge under Article 233(2) of the Constitution?

ARGUMENTS FROM BOTH SIDES

Argument on behalf of the  Petitioner

• The Constitution’s Article 233(2) is a self-contained Code. A person’s nomination as a district judge is not barred by serving as a public prosecutor, assistant public prosecutor, or government pleader if the person has been an advocate or pleader for at least seven years. 
• He states that the State may, on mutually agreeable terms, appoint Public Prosecutors under Section 24 of Cr.P.C. for criminal cases and Government Pleaders under Section 2(7) of C.P.C. for conducting civil cases, either on a case-by-case basis or on a piece-rate basis for each item of work completed, or on a tenure basis or permanently. Despite being referred to as an “appointment,” this is really just an advocate’s engagement to represent clients in court. Only experienced advocates are qualified for these positions, and even after being appointed to a position as Government Pleader, Public Prosecutor, Assistant Public Prosecutor, or Assistant District Attorney, their primary responsibility remains representing clients in court. Their roles continue to be the same in nature. They are consistently Court Officers.
• The relevant provisions of the C.P.C. and Cr.P.C. must be construed harmoniously with the 1961 Act and the BCI Rules, especially Rule 49, taking into account the purpose and appointment scheme of government leaders, public prosecutors, assistant public prosecutors, assistant district attorneys, etc. He argued that the Bar Council of India’s authority to make rules cannot be used in a way that is inconsistent with the provisions of the CPC and Cr.P.C.; it is not an overriding power, and a rule made by the Council cannot render ineligible those who are eligible under Article 233(2) of the Constitution. 
• The Bar Council of India could not have intended when it created Rule 49 that the bar would be attracted to an attorney appointed by the government to represent it in court on a full-time wage basis.
• The Constitution’s Article 233(2), which defines “advocate” as a person enrolled as a member of the Bar to conduct cases in courts, prohibits the BCI Rules from superseding any laws passed by Parliament, including the CPC and the Cr.P.C.
• What is meant to be understood by the term “advocate” as it appears in Article 233(2) of the Constitution is that one’s right to practice decides whether or not one is an advocate.

Argument on behalf of the Respondent

• The candidate must have been an advocate for at least seven years and not be employed by the State or the Union in order to be eligible. The argument was made that the phrase “if he has been for not less than seven years an advocate” ought to be interpreted to indicate the seven years that immediately preceded his application or appointment. It cannot refer to any period of time earlier than seven years. Should that interpretation be affirmed, it would imply that an individual who has been registered as an advocate for seven years and has worked for the last twenty years would also be qualified for appointment as a district judge. This would defeat the purpose of the qualification outlined in Article 233(2). 
• According to Mr. Prashant Bhushan, Rule 49 of the BCI Rules states that a Public Prosecutor who works full-time for the government is no longer an advocate. The candidates whose appointment was contested were full-time government employees, subject to transfer and posting as law officers with government-affiliated companies, and performing various duties in addition to appearing in court as public prosecutors. The Public Prosecutors’ appearance in court is only one of their duties; this does not qualify them as advocates or provide them an appointment under Article 233 (2) of the Constitution. He defended the High Court’s position.
• A person is expressly prohibited by Rule 49 from acting as an advocate after accepting a job. According to Rule 43 of the BCI Rules, in the event that such an individual does not file a declaration within ninety days of beginning employment, the State Bar Council may suspend the individual’s license to practice. It was argued that Section 24 Cr.P.C. and Section 2(7) C.P.C. grant full-time employees a restricted right of appearance before the courts. These workers are limited to appearing in briefs assigned to them by the State Government for designated courts.

JUDGMENT

The Court determined that, as of the date of application, the five private appellants (Respondent Nos. 9, 12, 13, 15, and 18 in CWP No. 9157/2008 before the High Court) satisfied the requirements for eligibility under both Rule 11(b) of the HSJS Rules and Article 233(2) of the Constitution. It is possible for the contested verdict to be overturned, and it is.

CONCLUSION

As long as they practice, advocates are prohibited from working as full-time salaried employees of any organization, government agency, business, or concern, according to Rule 49 of the BCI Rules. Rule 49’s definition of “employment” does not include the work of an advocate whose primary duty has been to represent his client in court proceedings, either entirely or primarily. A person who has been hired to act and/or plead in court as an advocate, even though the employment is based on salary and other service conditions, is not covered by Rule 49 because the person is still practicing law. However, if the person is hired primarily to perform other legal tasks rather than act and/or plead in court, Rule 49’s prohibition will apply, and the person will no longer be an advocate and will only be an employee. The bar outlined in Rule 49 extends to employment for tasks other than serving as an advocate in court.

According to Rule 43, an advocate who has accepted a full-time or part-time job that conflicts with his practice as an advocate must send a declaration to the appropriate State Bar Council within the time frame given therein. Failure to do so may result in the suspension of the advocate’s license to practice. Stated differently, there is no need for such a declaration if an advocate’s employment, whether full- or part-time, is consistent with his advocacy practice. The details of his employment are not important; what matters is whether or not it aligns with his advocacy practices, that is, whether or if he continues to appear in court as a result of his employment. If the response is in the affirmative, he still advocates despite his job. However, he stops being an advocate if the response is bad.

In conclusion, this case serves as a landmark judgment for dealing with the definition of public prosecutor and advocate. The Court protects the rights of advocates to appear in the judiciary and to give justice. This case, though having its own criticism, serves the purpose of addressing the issues and further providing a clear interpretation of statutes.