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Tuesday, December 10, 2013

Service matter - Appointment for the post of District judge - whether a public prosecutor is eligible for the post of Judiciary - Apex court held yes = Lakshmana Rao Yadavalli & Anr. .....Appellants. Versus The State of Andhra Pradesh & Ors. …..Respondents = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41050

     Service matter - Appointment for the post of District judge - whether a public prosecutor is eligible for the post of Judiciary - Apex court held yes =

whether   a   Public   Prosecutor/Assistant    Public
        Prosecutor/District  Attorney/Assistant  District   Attorney/Deputy
        Advocate General, who is in full time  employ  of  the  Government,
        ceases to be an advocate or pleader within the meaning  of  Article
        233(2) of the Constitution of India. =
 simply because a person has been appointed as an  Assistant  Public
        Prosecutor and as such he  is  in  employment  of  the  Government,
        cannot be a ground for not selecting him to a judicial post on  the
        ground that he was not an advocate  practising  at  the  Bar.   The
        ratio of the said judgment is that an Assistant  Public  Prosecutor
        is also an advocate who is practising at the Bar.


  We direct the High Court and the respondent-State to give  appointment
      to the appellants to the post in question with effect from the date on
      which they ought to have been appointed, however, we clarify that they
      shall not be paid salary for the period during  which  they  have  not
      worked as  District and Sessions Judges.  The appellants shall also be
      placed at the appropriate place in the seniority list of the  District
      and Sessions Judges after considering  their  position  in  the  merit
      list. We are sure that the respondent-  High  Court  as  well  as  the
      respondent-State shall do the needful for giving  the  appointment  to
      the appellants at an early date.       


    NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

               CIVIL APPEAL NOS.                       OF 2013
              (Arising out of SLP (C) Nos. 23807-23808 of 2012)





Lakshmana Rao Yadavalli & Anr.          .....Appellants.



                                Versus



The State of Andhra Pradesh & Ors.              …..Respondents





                            WITH

                  CIVIL APPEAL NOs.                OF 2013
              (Arising out of SLP (C) Nos.25219-25220 of 2012)




                               J U D G M E N T




1 ANIL R. DAVE, J.




     1. Leave granted.


     2. Being aggrieved by the Judgment delivered  by  the  High  Court  of
        Andhra Pradeh in W.P.No.34683 of 2011 and 894 of  2012  dated  17th
        July, 2012, the appellants have filed these appeals.


     3. The facts giving rise to the present litigation in a nut-shell  are
        as under:


        The appellants, Shri Lakshmana Rao Yadavalli and Shri Dunna  Ramulu
        were desirous of being appointed as District  and  Sessions  Judges
        (Entry Level) in the A.P. Higher Judicial  Service  and  therefore,
        had applied for the post and they also found  their  names  in  the
        select list at serial nos.9 and 12 respectively.


     4. Before they could be  appointed  to  the  post  in  question,  Writ
        Petition Nos.34683 of 2011 and 894 of 2012 had been  filed  in  the
        High Court wherein their  selection  had  been  challenged  on  the
        ground that the appellants had been  working  as  Assistant  Public
        Prosecutors and as such, they should not have  been  considered  as
        advocates having standing of seven years at the Bar  and  according
        to  the  submissions  made  in  the  petitions,  challenging  their
        selection, a person working as a Public Prosecutor cannot  be  said
        to be an advocate  practising  at  Bar  because  of  his  being  in
        employment of the State of Andhra Pradesh.
Moreover, Lakshmana Rao
        Yadavalli, the first appellant’s selection had also been challenged
        on an additional ground that he had not completed 35 years  of  age
        at the  time  when  the  post  in  question  had  been  advertised.
        According to the submissions made before the High Court,  a  person
        cannot be appointed to the post in question till he  completes  the
        age of 35 years.


     5. After hearing the concerned parties, the aforestated petitions  had
        been  allowed  and  therefore,  the  present  appellants  who  were
        respondents in the aforestated petitions have not been appointed to
        the post in question.


     6. In the aforestated circumstances, the  appellants  have  challenged
        the validity of the aforestated Judgment delivered  by  the  Andhra
        Pradesh High Court.


     7. The learned counsel appearing for the appellants has submitted that
        the issue involved in the present appeals had also arisen in  Civil
        Appeal No.10836 of 2013 titled  Sasidhar Reddy Sura vs.  The  State
        of Andhra Pradesh & Ors.  decided on 05th December, 2013   as  well
        as in the Judgment delivered by this Court in the  case  of  Deepak
        Aggarwal v. Keshav Kaushik and others [2013(1) SCALE 564].  In  the
        above referred case a question that  had  been  raised  before  the
        court   was   whether   a   Public   Prosecutor/Assistant    Public
        Prosecutor/District  Attorney/Assistant  District   Attorney/Deputy
        Advocate General, who is in full time  employ  of  the  Government,
        ceases to be an advocate or pleader within the meaning  of  Article
        233(2) of the Constitution of India.


     8. Ultimately, this Court came to the conclusion that the appellant in
        the said case had been practising as an advocate, therefore, he was
        eligible for the judicial post.  Similarly, in the case on hand the
        appellants were practising advocates though  they  were  full  time
        employees and therefore, they  are  eligible  to  be  appointed  as
        Judges.


     9. In the case of Deepak Aggarwal (supra) this  Court  has  held  that
        simply because a person has been appointed as an  Assistant  Public
        Prosecutor and as such he  is  in  employment  of  the  Government,
        cannot be a ground for not selecting him to a judicial post on  the
        ground that he was not an advocate  practising  at  the  Bar.   The
        ratio of the said judgment is that an Assistant  Public  Prosecutor
        is also an advocate who is practising at the Bar.


   10.       In view of the aforestated legal position, in our opinion,  the
        High Court was not right in  considering  the  appellants  as  dis-
        qualified candidates as they were in full time  employment  of  the
        Government.


   11.      So far as appellant no.1 herein  is  concerned,  the  additional
        ground which had been raised against him before the High Court  was
        that he had not completed 35 years of age  at  the  time  when  the
        advertisement inviting applications for appointment to the post  in
        question had been published.  This Court has taken a view in  Civil
        Appeal No.10836 of 2013, that it is not necessary that a  candidate
        should have completed 35 years of age for being  appointed  to  the
        post of a District and Sessions Judge (Entry  Level)  in  the  A.P.
        Higher Judicial Service. The reason given by this Court is that the
        recruitment rules framed for appointment to the post in question by
        the Andhra Pradesh High Court do not provide for  any  minimum  age
        and simply because the Shetty Commission had recommended that  only
        a person who had completed 35 years of age should be  appointed  to
        the post of a District and Sessions Judge (Entry Level)  could  not
        have been the reason for not appointing the present appellant no.1.


  12. For the aforestated reasons, in our opinion, the reasons  assigned  by
      the High Court for not  appointing  the  appellants  to  the  post  in
      question, are not correct and therefore, we quash and  set  aside  the
      impugned judgment so far as it pertains to the present two appellants.
       The appeals are allowed with no order as to costs.


  13. We direct the High Court and the respondent-State to give  appointment
      to the appellants to the post in question with effect from the date on
      which they ought to have been appointed, however, we clarify that they
      shall not be paid salary for the period during  which  they  have  not
      worked as  District and Sessions Judges.  The appellants shall also be
      placed at the appropriate place in the seniority list of the  District
      and Sessions Judges after considering  their  position  in  the  merit
      list. We are sure that the respondent-  High  Court  as  well  as  the
      respondent-State shall do the needful for giving  the  appointment  to
      the appellants at an early date.

   C.A.Nos……..………./2013
   (Arising out of SLP(C) Nos.25219-25220/2012)





   1. Leave granted.


   2. The facts giving rise to the present appeals are  not  much  different
      than the one which have been decided  and  discussed  above  in  Civil
      Appeals arising out of SLP(C) Nos.23807-23808 of 2012.


   3. In the instant case, the present appellant was working as a full  time
      employee of the Andhra Pradesh Court as Assistant Public Prosecutor as
      well as that she had not completed minimum age of 35 years at the time
      of publication of advertisement and therefore, the High Court  was  of
      the view that she could not have been  appointed  as  a  District  and
      Sessions Judge (Entry Level) in the A.P. Higher Judicial  Service  for
      the reasons given in the aforestated judgment.   Thus,  the  appellant
      though had been selected as she found her name in the select  list  at
      serial no.10, but had not appointed.


   4. For the reasons recorded  in  Civil  Appeals  arising  out  of  SLP(C)
      Nos.23807-23808 of 2012, the present appeals are  allowed  and  it  is
      directed that the High Court as well as the respondent-State  will  do
      the needful for giving appointment to the appellant with retrospective
      effect i.e. from the date on which she ought to have  been  appointed,
      however, she shall not be paid salary for the period during which  she
      has not worked as a District & Sessions Judge.  We are sure  that  the
      respondents will do the needful for the appointment of  the  appellant
      at an early date.


   5. The appeals are allowed with no order as to costs.





                                             ……………………….J.
                                             (ANIL R. DAVE)






                                             ……………………….J.
                                             (DIPAK MISRA)






   New Delhi
   December 06, 2013






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