PETITIONER:
CHANDRA PRAKASH AGARWAL
Vs.
RESPONDENT:
CHATURBHUJ DAS PARIKH & ORS.
DATE OF JUDGMENT:
18/12/1969
BENCH:
SHELAT, J.M.
BENCH:
SHELAT, J.M.
SIKRI, S.M.
BHARGAVA, VISHISHTHA
MITTER, G.K.
VAIDYIALINGAM, C.A.
CITATION:
1970 AIR 1061 1970 SCR (3) 354
1970 SCC (1) 182
ACT:
Constitution of, India, 1950, Art. 217(2)(b)-”Advocate of a
High Court”, meaning of Art. 124(3) and 233(2)-Legal
Practitioners Act, 1897-Bar Councils Act, 1926.
HEADNOTE:
The appointment of the respondent as a Judge of the High
Court was challenged on the ground that though he was
enrolled as an advocate more than twenty years ago he could
not ‘claim to be one who “has for at least ten years been an
advocate of a High Court” as he was all along practicing in
the Muffasil and not in the High Court.
HELD : The expression “an Advocate of a High Court” in Art.
217(2)(b) mean an advocate on the roll of a, High Court and
entitled as of right by that reason to practice in, the High
Court. There is nothing In the Article to indicate that an
Advocate of a High Court can only be that advocate who has
been practising in the High Court. [358 HI
Sengalani Gramani v. Subayya Nadar, A.I.R. 1967 Mad. 344 and
V. G. Row v. Alogiriswamy, A.I.R. 1967 Mad. 347, referred
to.
JUDGMENT:
CIVIL APPELLATE.JURISDICTION : Civil Appeal No. 2331 of
1968.
Appeal from the judgment and order dated July 24, 1968 of
the Allahabad High Court in Civil Misc. Writ No. 14433 of
1968.
M.P. Bajpai, S. M. Jain and G. M. Wantoo, for the
appellant.
O. P. Rana, for respondents Nos. 1, 2 and 5.
I. N. Shroff, for respondent No. 3.
L. M. Singhvi and S. P. Nayar, for respondent No. 4.
Shelat, J. I he appellant filed a writ petition in the High
Court at Allahabad for a quo warranto against respondent 1,
challenging therein his appointment as 4 Judge of that High
Court. The ground on which he challenged the appointment
was that though respondent 1 was enrolled as an advocate
more than 20 years ago, he could not still claim to be one
who “has for at least ten years been an advocate of a High
Court” within,.the meaning of Art.
355
217(2)(b) of the Constitution, as admittedly respondent 1
was all along practising at Benaras and not in the High
Court.
The writ petition came up for a preliminary hearing before
W. Broome and G. Kumar, JJ., when it was urged that the
expression “an advocate of a High Court” in Art. 217(2)(b)
meant an advocate practising in the High Court and not one
practising in a court or courts subordinate to-the High
Court. In support of that interpretation, the language used
in Art. 124(3) on the one hand and that in Art. 233(2) on
the other was relied on to show that the Constitution has
employed different language in connection with different
purposes thereby making a deliberate distinction between “an
advocate” and ”an advocate of a High Court”, the former
meaning an advocate practising in a court or courts
subordinate to the High Court and the latter meaning an
advocate practising in a High Court. The contention was
that while dealing with the qualifications for the post of a
district judge Art. 233(2) uses the expression “an advocate”
as distinguished from the expression “advocate of a High
Court” in Arts. 217(2)(b) and 124(3) which lay down the
qualifications for the offices of a Judge of a High Court
and a Judge of the Supreme Court. The difference in the
language, it was contended, indicated that whereas a person
to be appointed a district judge need be only an advocate of
the prescribed standing, the one to be appointed a Judge
either of a High Court or the Supreme Court must be an
advocate who has practised for the required number of years
in a High Court or two or more High Courts in succession.
It was further contended that such an indication is also
furnished by the language of Art. 124(3) (a) and (b), in the
sense that just as the expression “a judge of a High Court”
in sub-cl. (a) must mean a Judge who has worked as a Judge
in the High Court, the expression “an advocate of a High
Court” must similarly mean an advocate who has practised in
a High Court.
There was a difference of opinion between the two learned.
Judges, Broome, J. held that “on a plain reading of the
relevant clauses” the correct interpretation of the
expression “an advocate of a High Court” meant an advocate
enrolled as an advocate of a High Court, irrespective of
whether on such enrolment he practised in a High Court or a
court or courts subordinate to the High Court’ G. Kumar, J.,
on the other hand, accepted the contention urged on behalf
of the appellant and held that the expression “ an advocate
of a High Court” meant one who has practised for the
required period in a High Court, and therefore, a person who
has practised only in a court or courts subordinate to the
High Court would not answer the qualification required under
Art. 217(2)(b). Such a difference of opinion having thus
arisen between the two learned Judges, the matter was
referred to Mathur,
356
J., who agreed with Broome J., and thereupon the writ
petition was dismissed. The present appeal on certificate
granted by the High Court challenges the correctness of the
order dismissing the writ petition.
Counsel for the appellant repeated before us the same
contentions which were urged first before Broome and Kumar,
JJ., and later on before- Matkur, J. In our opinion the
language used in Art. 217 (2) (b) is plain and incapable of
bearing an interpretation other than the one given by
Broome, J., and agreeing with him by Mathur, J.
One broad point against the interpretation sought by counsel
for the appellant would be that the expression “an advocate
of a High Court” in its ordinary plain meaning must mean a
person who has by enrolling himself under the relevant
provisions of law become an advocate of a High Court. If it
was intended that the: qualification under Art. 217(2)(b)
should be that a person appointed to the office of a Judge
of a High Court should have practised in a High Court and
that practising in a court or courts subordinate to it would
not answer the qualification, the language used in sub-cl.
(b) of Art. 217(2) would have been as follows
“A person shall not be qualified for appointment as a Judge
of a High Court unless he has for at least ten years
practised as an advocate in a High Court or in -two or more
such Courts in succession”.
Apart from this aspect, some of the earlier statutes bearing
on the same subject have also used the very same or similar
expression. The Legal Practitioners Act, 1879 defined by S.
3 a “legal practitioner” as meaning an Advocate, Vakil or
Attorney of any High Court, a Pleader, Mukhtar or Revenue-
agent. Sec. 4 of that Act provided
“Every person now or hereafter entered as an Advocate or
Vakil on the roll of any High Court under the Letters Patent
constituting’such Court, or under section 41 of this Act, or
enrolled as a pleader in the Chief Court of the Punjab under
section 8 of this Act, shall be entitled to practise in all
the Courts subordinate to the Court on the roll of which he
is entered-and any person so entered who ordinarily
practises in the Court on the roll of which he is entered or
some Court subordinate thereto shall, notwithstanding
anything herein contained, be entitled, as such, to practise
in any Court in the territories to which this Act extends
other than a High Court on whose roll he is not entered, or,
with
357
the permission of the Court-in any High Court on whose roll
he is not entered-.”
Sec. 41 of the Act empowered a High Court to make rules as
to the qualifications and admission of proper persons to be
“Advocates of the Court” and subject to such rules to enrol
such and so many Advocates as it thought fit. These
provisions clearly show that advocates enrolled-under s. 41
were enrolled as advocates of a High Court and were
entitled, once enrolled, to practise either in.the High
Court or courts subordinate to such High Court or both.
There was thus in the case of advocates so enrolled no
distinction between those who practiced in the High Court
and those who practiced in the courts subordinate to such
High Court as they were entitled on enrolment, as aforesaid,
to practise either in the High Court or in a court or courts
subordinate thereto or both. The Indian Bar Councils Act,
XXXVIIII of 1926 also defined an ‘advocate’ meaning one
“entered in the roll of advocates of a High Court under the
provisions of this Act.” Section 8 laid down that no person
would be entitled as of right to practise in any High Court
unless his name was entered in the roll of “the advocates of
the High Court maintained under this Act.” Under s. 8(2),
the High Court was required to prepare and maintain “a roll
of advocates of the High Court” in which should be entered
the names of (a) all persons who were, as advocates, vakils
or pleaders, entitled as of right to practise in the High
Court – immediately before the date on which this section
came into force in respect thereof; and (b) all other
persons who were admitted to be “advocates of the High
Court” under this Act. Section 9 empowered the Bar Council
to make rules to regulate the admission of persons to be
“advocates of the High Court”, and s. 1 0 gave power to the
High Court in the manner therein provided to reprimand,
suspend or remove from practice “any advocate of the High
Court” whom it found guilty of professional or other
misconduct. Section 14(1) of the Act provided that an
advocate, i.e., one whose name was entered under this Act in
the-roll of advocates of a High Court, shall be entitled as
of right to practise in the High Court of which he is an
advocate or in any other court save as otherwise provided by
sub-s. 2 or by or under any other law for the time being in
force. Once, therefore, the name of- an advocate was
entered in the roll of advocates of a High Court under one
or the other Act, he was entitled to practise in the High
Court and in courts subordinate thereto or in any court
subject of course to the provisions aforesaid. He was thus
an advocate of the High Court irrespective of whether he
practiced in the High Court or in the courts subordinate
thereto, and as seen from s. 10 of the Bar Councils Act, he
became amenable to the disciplinary jurisdiction of the High
Court by reason of his being enrolled as an advocate of the
High Court. L7Sup. Cl((NP)70-8
358
The expression “an advocate of a High Court” must,
therefore, mean, in the light of these provisions, an
advocate whose name has been enrolled as an advocate of a
High Court, no matter whether he practised in the High
Court itself or in courts subordinate to it or both. The
expression “an advocate or a pleader of a High Court” having
thus acquired the meaning as aforesaid, it must be presumed
that a similar expression, namely “a pleader of a High Court
for a period of -not less than ten years” was used in the
same sense in S. 101(3)(d) of the Government of India Act,
1915, when that section laid down the qualifications for the
office of a Judge of a High Court in the case of a pleader.
The same phraseology was also repeated in s. 220(3)(d) of
the Government -of India Act, 1935, except for one change,
namely, that in calculating 10 years’ standing, his standing
as a pleader of 2 or more High Courts in succession was also
to be included.
It will be noticed that in the latter part of sub-s. 3 of S.
220, which provided that in calculating the period during
which a person had been a pleader, the period during which
he had held judicial office after he became a pleader shall
be included, the expression used is simply a “pleader” and
not a pleader of any High Court. But the word “pleader” in
this part of s. 220(3) must obviously mean the same person
as “the pleader of any High Court” mentioned earlier in the
same sub-section because the period during which he held any
judicial office was to be reckoned for his standing of ten
years as. a pleader of a High Court. This clearly high-
lights the point that what s.220(3) in the 1935 Act required
as a qualification was that a person to be appointed a Judge
of a High Court had to have ten years’ standing as a pleader
of any High Court, which meant that he must have been
enrolled as a pleader of any High Court for that period.
The question as to where he was practising, whether in the
High Court itself or in courts subordinate thereto, does not
appear to make any difference. The same phraseology, except
for the change from the word ‘Pleader’ to the word
‘advocate’ has been carried into Art. 217(2)(b). That was
because under S. 8 of the Bar Council’s Act the roll which
the High Court was to prepare and maintain was the roll of
the advocates of the High Court which included pleaders
entitled as of right to practise in the High Court
immediately before the date on which S. 8 of that Act was
brought into force.
It seems, therefore, indisputable that the expression
‘pleader of a High Court’ used in the Constitution Acts of
1915 and 1935 and the expression “an advocate of a High
Court” used in Arts. 217 (2) (b) and 124 (3) must mean
respectively a pleader or an advocate on the roll as such of
a High Court and entitled as of right by that reason to
practise in the High Court. There is nothing
359
an any of these provisions to indicate that an advocate of a
High court can only be that advocate who has been practising
in the High Court. If the meaning of the expression “an
advocate of a high Court” as suggested on behalf of the
appellant were to be accepted a very strange anomaly, as
pointed out by Broome, J., would result while construing
Art. 124(3), namely, that an advocate who has practised in
the Supreme Court for the required period but not in a High
Court would not be eligible for the office of a Judge of the
Supreme Court. For these reasons we are in agreement with
Broome and Mathur, JJ., on the construction placed by them
on Art. 217 (2) (b). The first contention of counsel for
the appellant, therefore, must fail.
Counsel next relied on Art. 233 (2) in support of the
construction suggested by him of Art. 217(2)(b) and pointed
out that wherever the Constitution did not wish to insist on
an appointee having been an advocate practising in a High
Court, it has used a different expression, namely, an
advocate simpliciter, as in Art. 233(2). Art. 233 deals
with appointment of district judges and cl. 2 thereof
provides that a person not already in the service of the
Union or 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. It is true that in this clause the
word “advocate” is used without the qualifying words “of a
High Court”. It is difficult, however, to see how the fact
that the word “advocate” only used in connection with the
appointment of a district judge would assist counsel in the
construction suggested by him of the expression “advocate of
any High Court” in Art. 217, or that that expression must
mean an advocate who has had the necessary number of years’
practice in. the High Court itself. The distinction, if
any, between the words “an advocate” in Art. 233(2) and the
words “an advocate of a High Court” in Art. 217(2)(b) has no
significance in any event after the coming into force of the
Advocate Act, 1961, as by virtue of s. 16 of that Act there
are now only two classes of persons entitled to practice,
namely, senior advocates and other advocates.
We find that in two of its decisions, in Sengalani Gramani
v., Subbayya Nadar & Ors. () and V. C. Row v. A.
Alagiriswamy & OrS.(2). the High Court of Madras also has
interpreted Art. 217(2)(b)’in the same manner as we have
done. In our view the construction of Art. 217(2)(b)
adopted by Broome, J., and on a reference to him by Mathur,
J., is correct. The result is that the appeal fails and is
dismissed with costs. One hearing fee only.
Appeal dismissed.
Y.P.
(1) A.I.R. 1967 Mad. 344.
(2).A.I.R. 1967 Mad. 347-
360