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
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
