Rameshwar Dayal vs The State Of Punjab And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 438 of 1960

Decision Date: 5 December 1960

Coram: S.K. Das, Bhuvneshwar P. Sinha, K.C. Das Gupta, N. Rajagopala Ayyangar, J.R. Mudholkar

In the matter titled Rameshwar Dayal versus The State of Punjab and Others, decided on 5 December 1960, the Supreme Court of India delivered its judgment. The opinion was authored by Justice S. K. Das and was heard by a bench comprising Justice S. K. Das, Chief Justice Bhuvneshwar P. Sinha, Justice K. C. Das Gupta, Justice N. Rajagopala Ayyangar, Justice J. R. Mudholkar and Justice R. J., with the citation recorded as 1961 AIR 816 and 1961 SCR (2) 874. The case concerned the statutory qualifications for appointment as a district judge under Article 233(2) of the Constitution of India, which requires that a person not already in the service of the Union or a State must have been an advocate or pleader for a minimum period of seven years.

The petitioner, Rameshwar Dayal, challenged the constitutional validity of the appointments of respondents numbered two through six as district judges. He filed the petition under Article 226 of the Constitution before the High Court of Punjab, arguing that the appointments were made in violation of Article 233(2). The factual background revealed that the respondents had originally been enrolled as advocates of the Lahore High Court at various times between 1933 and 1940. Respondents 2, 4 and 5 were listed on the roll of advocates of the Punjab High Court and were actively practising as advocates when they were appointed district judges in 1950 and 1952. In contrast, respondents 3 and 6 were not shown on the Punjab High Court roll at the times of their appointments as district judges in 1957 and 1958; respondent 6 obtained his enrollment only after his appointment.

The procedural history noted that a notification dated 28 September 1948 brought sections 3 to 16 of the Bar Councils Act 1926 into operation for the East Punjab High Court. Consequently, a Bar Council was constituted, and the High Court was required to prepare and maintain a roll of advocates in accordance with section 8 of that Act. The proviso to subsection (2) of section 8 mandated the payment of a fee of ten rupees to the Bar Council. The petitioner contended that following the partition of the country, a separate High Court for East Punjab was established on 15 August 1947 under the High Courts (Punjab) Order 1947. He argued that, because the respondents did not possess a continuous period of seven years of practice in an Indian court after that date, they failed to satisfy the eligibility condition laid down in Article 233(2) of the Constitution.

When the respondents were appointed as District Judges, it was alleged that their appointments were constitutionally invalid. The principal question before the Court was how to interpret the seven‑year requirement of Article 233(2) of the Constitution. Specifically, the Court had to decide whether the seven‑year period must be measured solely by the advocate’s or pleader’s standing with respect to the right to practice in a court located in the territory of India as defined by the Constitution, or whether a right of practice in a court that, although situated in India before the 1947 partition, ceased to be located in India after the partition could also be taken into account for the purpose of computing the required seven years. The Court held that, in accordance with clause (6) of the High Courts (Punjab) Order, 1947, read together with section 8(3) of the Bar Councils Act, 1926, an advocate of the Punjab High Court was permitted to include the period of his practice before the Lahore High Court when determining his standing at the Bar. Consequently, respondents 2, 4 and 5, who remained advocates of the Punjab High Court at the time of their appointment as District Judges and who possessed a standing of more than seven years at that moment, satisfied the requirement of Article 233(2). The Court further observed that the effect of clause (6) of the High Courts (Punjab) Order, 1947, and section 8(2)(a) of the Bar Councils Act, 1926, was to recognise, for the period from 15 August 1947 to 28 September 1948, advocates who had been enrolled in the Lahore High Court as entitled to practise in the Punjab High Court. After 28 September 1948, such advocates were automatically placed on the roll of the Punjab High Court but were required to pay a fee of Rs 10 to the Bar Council. Accordingly, respondents 3 and 6, who never ceased to be advocates after 15 August 1947, continued to be advocates of the Punjab High Court up to their appointments as District Judges and therefore possessed the requisite seven‑year standing to be eligible under Article 233(2).

The matter was before the Civil Appellate Jurisdiction as Civil Appeal No. 438 of 1960, filed by special leave from the judgment dated 21 September 1959 of the Punjab High Court, Chandigarh, in Civil Writ No. 1050 of 1959. Counsel for the appellant included A.S. B. Chari, M.S.K. Sastri and K.L. Mehta. For respondent No. 1, the Advocate General of Punjab, S.M. Sikri, appeared, assisted by N.S. Bindra, K.L. Arora and D. Gupta. Respondents 2, 3 and 5 were represented by Gurbachan Singh, Tirth Singh Munjral and R.H. Dhebar. Respondents 4 and 6 were defended by A.V. Viswanatha Sastri, R. Ganapathy Iyer and D. Gupta. The Union of India intervened through H.N. Sanyal, Additional Solicitor‑General of India, and D. Gupta. Additional interveners, Om Dutt Sharma and B.D. Pathak, were represented by M.K. Nambiyar, M.S.K. Sastri and K.L. Mehta. The judgment was delivered on 5 December 1960 by Justice K. Das. The Court proceeded to address the substantive issues raised concerning the validity of the appointments.

The appeal was taken by special leave from an order of the Punjab High Court dated 21 September 1959, in which the High Court had summarily dismissed the petition filed by the present appellant under Article 226 of the Constitution. The petition sought certain relief in respect of five individuals, two of whom are now serving as Additional Judges of the Punjab High Court, the third as an Officiating Judge of the same Court, the fourth as District and Sessions Judge in Delhi, and the fifth as Registrar of the Punjab High Court, Chandigarh. The appellant contended, and it remains his case, that these five persons—now respondents 2 to 6 before this Court—were not qualified to be appointed as District Judges under Article 233 of the Constitution at the time of their appointments by the State Government, now respondent 1, and that therefore their appointments were constitutionally invalid. Accordingly, the appellant’s principal relief was the issuance of a writ in the nature of a writ of quo warranto to remove them from their offices, to restrain them from exercising the powers, duties and functions of the posts they occupy, and to prevent them from claiming any rights, privileges or emoluments attached to those offices. He also claimed certain subsidiary or ancillary reliefs, the particulars of which need not be reiterated. The High Court had dismissed the petition summarily; an application for a certificate of fitness for the petition had also failed in that Court, and the appellant subsequently obtained special leave to appeal on 19 August 1960. The appeal has been contested by the State of Punjab, respondent 1, and by the other respondents, namely Shamsher Bahadur, Harbans Singh and Gurdev Singh who are Justices of the Punjab High Court, Hans Raj Khanna who is District and Sessions Judge, Delhi, and P. R. Sawhney who is Registrar of the High Court. These respondents have filed separate affidavits in reply, and some of them have been represented separately and heard. The Advocate‑General of Punjab appeared on behalf of respondent 1 and contested the appeal. The Union of India was originally a party‑respondent because the appellant had initially challenged the appointment of two of the respondents as High Court Judges; however, that relief was abandoned during the pendency of the special leave petition and, on an application of the appellant, the Union’s name was struck out by order dated 18 March 1960, leaving the dispute confined to the validity of the original appointment of respondents 2 to 6 as District Judges. Subsequently, the Union applied to intervene in the appeal, and because the case required interpretation of Article 233, the Court permitted the intervention and heard the learned Additional Solicitor‑General, although the Union had not appeared at an earlier stage.

The Court noted that the appellant had moved to remove certain individuals from the list of respondents, and that request was being contested. Additionally, two other persons, identified as B. D. Pathak and Om Dutt Sharma, had instituted a writ petition in the Punjab High Court challenging the legality of the appointment of P. R. Sawhney. The petition alleged that P. R. Sawhney, while serving as Additional District and Sessions Judge in Delhi, had on 22 January 1959 acquitted three individuals in separate criminal appeals that originated from a magistrate’s decision concerning an assault alleged by the petitioners. The petitioners claimed that they themselves had been assaulted by the accused persons in the underlying case, and that the judicial decision raised serious questions about the appointment’s propriety. Following the writ petition, the petitioners also filed three revision petitions challenging the orders passed, and those revision matters remain pending before the High Court. In view of these facts, the Court permitted the petitioners to intervene in the present appeal to the extent that the intervention concerned the validity of P. R. Sawhney’s appointment, and counsel representing them was heard. A preliminary objection was raised by respondents who no longer hold positions as District Judges, asserting that the appeal should be dismissed as non‑maintainable because the writ of quo warranto concerns an office they no longer occupy. The appellant, in response, argued that respondents numbered two to four are not permanent High Court judges and therefore, should return to their substantive District Judge posts, making the question of the validity of those original appointments a live issue. The learned Advocate-General further submitted that the State is eager to obtain a definitive decision on the legality of the appointments so as to prevent future disputes, and consequently the State does not wish to pursue any preliminary objection. After careful consideration, the Court concluded that the preliminary objection must be overruled and that the matter warrants a substantive examination of the legality of the impugned appointments. To aid the analysis, the Court decided to outline briefly the background of the appointments of respondents two through six as District Judges. Respondent two, identified as Shamshere Bahadur, was called to the Bar in England by the Middle Temple on 26 January 1933, enrolled as an Advocate of the Lahore High Court on 15 May 1933, and practiced there. He subsequently enrolled as an Advocate of the Federal Court of India on 9 February 1949 and, following the Independence of India, practiced as an Advocate of the East Punjab High Court after 15 August 1947.

It was noted that after serving as District and Sessions Judge beginning on 20 March 1950, the first respondent continued his career as Legal Remembrancer of the State Government from December 1953 until May 1959, at which point he was appointed an Additional Judge of the Punjab High Court. The second respondent, who had been called to the Bar and enrolled as an Advocate of the Lahore High Court on 5 March 1937, held the position of Additional District and Sessions Judge at Ferozepore from 2 July 1947 to 22 February 1948. Following a brief return to practice in Simla, he served as Deputy Custodian of Evacuee Property from 15 March 1948 until 17 April 1950, after which he was appointed District and Sessions Judge on 18 April 1950 and later became an Additional Judge of the Punjab High Court on 11 August 1958. The third respondent was enrolled as a Pleader of the Lahore High Court on 25 October 1934 and subsequently as an Advocate of the same Court on 20 December 1938. He was also enrolled as an Advocate of the Federal Court of India on 29 May 1948 and remained in practice until his appointment as District and Sessions Judge on 2 February 1952, after which he officiated as a Judge of the Punjab High Court beginning on 11 July 1960. The fourth respondent was enrolled as a Pleader of the Lahore High Court on 17 July 1934 and as an Advocate of that Court on 20 December 1940. He practiced as a lawyer at Amritsar until his appointment as District and Sessions Judge, with his name appearing on the Roll of Advocates prepared by the East Punjab High Court at the time of his appointment on 1 February 1952. The fifth respondent was called to the Bar on 17 November 1930 and enrolled as an Advocate of the Lahore High Court on 10 March 1931. After partition he moved to Delhi, served as Legal Adviser to the Custodian of Evacuee Property, Delhi, practiced for a period in Delhi, and then entered service with the Ministry of Rehabilitation as an Officer on Special Duty and Administrator of Rajpura Township. He became chairman of the Jullundur Improvement Trust on 30 March 1949, had his licence to practice as an Advocate suspended on 6 May 1949, and was appointed District and Sessions Judge on 6 April 1957. From the foregoing chronology it emerged that three of the five respondents—namely, the first, third and fourth respondents—had their names entered on the Roll of Advocates of the Punjab High Court before being appointed as District Judges, indicating that they were practising advocates at the time of their judicial appointments. In contrast, the second and fifth respondents did not have their names on the Roll at the moment of their appointment as District Judges.

The Court noted that the record showed that respondent P R Sawhney had been entered on the roll of advocates on 20 October 1959, which date fell after his elevation to the position of District Judge. This fact distinguished Mr Sawhney from the other respondents and the Court emphasized that the distinction was material, because it would affect one of the arguments advanced on behalf of the appellant. The central issue before the Court concerned the appellant’s claim that the appointments of respondents 2 through 6 as District Judges violated the Constitution’s provision on judicial appointments. For convenience, the Court reproduced the relevant constitutional text. Article 233(1) provides that the appointment, posting and promotion of District Judges in any State shall be made by the Governor of that State in consultation with the High Court having jurisdiction over the State. Article 233(2) adds that a person who is not already a servant of the Union or the State may be appointed a District Judge only if he has been, for not less than seven years, an advocate or a pleader, and only if the High Court recommends him for the appointment. The appellant’s counsel argued that the only point that required decision was whether respondents 2 to 6 satisfied the first condition of clause (2) at the time of their appointment by respondent 1.

The Court observed that the second condition—recommendation by the High Court—was undisputed, because the record confirmed that each of respondents 2 through 6 had indeed been recommended by the High Court prior to their appointment. The dispute therefore centered on the first condition, namely the seven‑year requirement of being an “advocate or pleader”. The appellant’s counsel advanced three lines of argument. First, he contended that the phrase “advocate or pleader” carried a specific legal meaning at the time the Constitution was adopted and should be interpreted in its ordinary sense as a person entitled to appear and plead for another before a court in India, expressly excluding a practitioner of a foreign court. To support this view, he referred to the definition of “legal practitioners” in the Legal Practitioners Act 1879, the definition of “pleader” in the Civil Procedure Code 1908, and the definition of “advocate” in the Bar Councils Act 1926. Second, he submitted that the use of the present perfect tense “has been” in clause (2) of Article 233 required the individual to be an advocate or pleader not only in the past but also at the moment of appointment. Third, he argued that the seven‑year period must be measured with reference to the right of practice in courts situated within the territory of India as defined in Article 1 of the Constitution; consequently, any right of practice that existed in a court that was part of India before the 1947 partition but ceased to be within Indian territory after partition could not be counted toward the seven‑year requirement. The Court indicated that it would now examine these submissions in relation to the matter before it.

The appellant’s counsel asserted that the use of the present perfect tense “has been” in clause (2) of Article 233 creates a grammatical requirement that the individual eligible for appointment must not only have previously been an advocate or pleader, but must actually be an advocate or pleader at the moment of his appointment to the office of District Judge.

He further argued that the seven‑year period mentioned in the same clause should be measured only with respect to the advocate’s or pleader’s right of practice in a court situated within the territory of India as defined in Article 1 of the Constitution. In other words, any right of practice that existed before the 1947 partition in a court that after partition ceased to be located in India cannot be counted toward the required seven years of experience.

The Court indicated that these submissions would be examined to the extent that they bear on the issue before it. However, prior to that examination, the Court found it necessary to set out the historical changes that occurred after the partition and that led to the creation of a High Court of Judicature for the province of East Punjab, now known as the Punjab High Court for the State of Punjab, and to explain how those changes affected advocates and pleaders who formerly enjoyed the right to practice before the Lahore High Court of undivided Punjab.

The Independence Act of 1947 gave birth to two independent Dominions—India and Pakistan—and conferred upon the Governor‑General the authority under Section 9 to issue orders for bringing the provisions of the Act into practical effect. Exercising that power, the Governor‑General issued the High Courts (Punjab) Order, 1947, which, effective from the appointed day of 15 August 1947, established a High Court of Judicature for the then Province of East Punjab. Clause 6 of that Order is particularly important and is reproduced in full:

“6(1) The High Court of East Punjab shall have the like powers to approve, admit, enrol, remove and suspend advocates, vakils and attorneys, and to make rules with respect to advocates, vakils and attorneys as are, under the law in force immediately before the appointed day, exercisable by the High Court at Lahore. (2) The right of audience in the High Court of East Punjab shall be regulated in accordance with the like principles as, immediately before the appointed day, are in force with respect to the right of audience in the High Court at Lahore: Provided that, subject to any rule made or direction given by the High Court of East Punjab in the exercise of the powers conferred by this Article, any person who, immediately before the appointed day, is an advocate, vakil or attorney entitled to practise in the High Court at Lahore shall be recognised as an advocate, vakil or attorney entitled to practise in the High Court of East Punjab.”

In reviewing the Order, the Court drew attention to clause fourteen, which provides inter alia that “the provisions of this Order shall have effect subject to any provision made on or after the appointed day with respect to............... the High Court of East Punjab by any legislature or other.. authority having power to make such provision.” The Court emphasized two principal points. First, under element six parenthesis two, the seniority of advocates in the newly created High Court, as it relates to their right of audience, was to be governed by the principle that had been applicable in the former High Court. Second, the proviso to clause six stipulated that any person who, before the appointed day, was an advocate entitled to practice in the Lahore High Court would be recognized as an advocate entitled to practice in the High Court of East Punjab, subject to any rule or direction issued by the High Court or to any provision enacted by the legislature or any other competent authority.

The Court noted that the Bar Councils Act of 1926, except for sections one, two, seventeen, eighteen and nineteen, did not originally apply to the High Court of East Punjab. By a notification dated September twenty‑eight, nineteen forty‑eight, the Governor of East Punjab directed that sections three through sixteen of the said Act would become effective with respect to the East Punjab High Court from that date. Section three of the Act provides that a Bar Council shall be constituted for every High Court in the manner prescribed by the Act. Section eight of the Act, as read for relevance, states in subsection one that no person shall be entitled by right to practice in any High Court unless his name is entered in the roll of advocates of that High Court maintained under the Act, and that this restriction does not apply to any attorney of the High Court. Subsection two requires the High Court to prepare and maintain such a roll, inserting the names of (a) all persons who, as advocates, vakils or pleaders, were entitled by right to practice in the High Court immediately before the effective date of the section, and (b) all other persons admitted as advocates of the High Court under the Act, provided that these persons have paid any stamp duty prescribed under the Indian Stamp Act, 1899, and a fee payable to the Bar Council – ten rupees for those referred to in clause (a) and an amount prescribed for others. Subsection three commands that entries in the roll be made in order of seniority, with seniority determined as follows: clause (a) requires that all persons identified in sub‑section two clause (a) be entered first.

The Court explained that seniority among advocates who were already entitled to practice in the High Court before this section became effective would be determined by the order in which each of them held that entitlement at that moment. For any advocate who was admitted to the Bar of the High Court after the enactment of the provision, seniority would be fixed by the date on which the person was admitted. However, if the advocate was a barrister, seniority would be based on the earlier of two dates: the date of admission to the High Court or the date on which the barrister was called to the Bar. The Court added a proviso that, for the purpose of this rule, the seniority of a person who, before being admitted as an advocate of the High Court, enjoyed a right of practice in another High Court would be measured from the date on which that earlier right was acquired. Finally, the Court noted that the rights of pre‑audience for advocates of the High Court would be allocated according to the seniority thus determined.

The record did not clearly show when the Bar Council for the Punjab High Court was formally constituted; however, it was stated in the Bar that the first election to the Council occurred in 1950. Notwithstanding this, on 13 January 1949 the High Court issued rules under sections 6 and 12 of the governing Act. Rule 2(1) of those rules directed the Registrar to categorize the advocates entered in the roll prepared under section 8(2) of the Indian Councils Act as follows. Category (a) comprised those individuals who, on or before the date of election of the Bar Council members, had already been entitled, for a period of at least ten years, to practice in the High Court as a matter of right. Category (b) covered all other persons, that is, those who were not described in clause (a) but who, on or before the election date, either already possessed or were likely to obtain the right to practice in the High Court.

The Court observed that two distinct chronological phases had to be considered. The first phase extended from 15 August 1947 to 27 September 1948, a period during which the principal provisions of the Bar Councils Act 1926 were not yet applicable to the Punjab High Court and the rights of advocates were governed by the High Courts (Punjab) Order 1947. The second phase began on 28 September 1948, when the main provisions of the Bar Councils Act were brought into force, the corresponding rules were framed, a Bar Council was constituted, and a roll of advocates was compiled and maintained in conformity with section 8 of the Act. It was during this second phase that the Constitution of India came into effect on 26 January 1950. The Court indicated that this historical backdrop was essential for evaluating the arguments presented by counsel for the appellant. Assuming, without deciding on their ultimate correctness, that counsel’s first two submissions were accurate—that the term “advocate” in clause (2) of Article 233 refers to an advocate of a Court in India and that the appointed individual must be such at the time of appointment—the Court proceeded to consider the implications of that interpretation.

An advocate who was on the roll of the Punjab High Court at the time of his appointment could not be objected to on the ground that he was not an advocate at that moment, because it was admitted that the three respondents were indeed advocates of a Court in India and remained such advocates up to the dates of their appointment. The only issue concerning them was whether the period of practice they had accrued in, or under, the Lahore High Court could be counted towards the seven‑year requirement. The judgment explained that the answer was provided by clause 6(2) of the High Courts (Punjab) Order, 1947, read together with section 8(3) of the Bar Councils Act, 1926. That clause stipulated that the right of audience in the High Court of East Punjab would be governed by the principle that was in force in the Lahore High Court immediately before the appointed day. The relevant rule of the Lahore High Court stipulated that advocates who were barristers would take precedence among themselves according to the date of their call to the Bar, while advocates who were not barristers would take precedence according to the dates when they became entitled to practice in a High Court. The same principle was applied to the East Punjab High Court, so an advocate of the Lahore High Court who was recognised as entitled to practise in the new High Court counted his seniority on the basis of his standing in the Lahore High Court. That seniority was preserved by the Bar Councils Act, 1926, and there was no reason to treat such an advocate differently for the purpose of clause (2) of Article 233; the advocate should retain the same standing as he enjoyed in the Court where he was practising.

The appellant’s counsel also cited Explanation 1 to clause (3) of Article 124 of the Constitution, which dealt with the qualifications for appointment as a Supreme Court judge, and the Explanation to clause (2) of Article 217, which dealt with the qualifications for appointment as a High Court judge. The counsel argued that the Constitution‑makers had, where they deemed it necessary, expressly provided for counting service in a High Court that was formerly in India. However, Articles 124 and 217 are worded differently and contain an additional citizenship qualification that does not appear in Article 233. Consequently, the judgment held that clause (2) of Article 233 could not be interpreted in light of the explanations added to Articles 124 and 217. Article 233 is a self‑contained provision concerning the appointment of District Judges. For a person already in the service of the Union or a State, no special qualifications are prescribed, and under clause (1) the Governor may appoint such a person as a district judge after consultation with the relevant High Court. For a person not already in service, clause (2) requires that he be an advocate or pleader of seven years’ standing, without specifying how that standing must be measured. Since an advocate of the Punjab High Court is entitled to count the period of his practice in the Lahore High Court for determining his standing at the Bar, there is nothing in Article 233 that mandates excluding that period when assessing eligibility for appointment as a district judge.

In the case of a person who is not already in service, clause (2) of Article 233 stipulates that the individual must be an advocate or pleader with at least seven years of standing. The provision does not prescribe how that standing is to be calculated. The Court examined whether an advocate of the Punjab High Court could include the period of practice that he or she had carried out in the Lahore High Court before Partition when determining the required seven‑year standing. The Court found no language in Article 233 that would compel the exclusion of that earlier period for the purpose of assessing eligibility for appointment as a district judge. The Court then considered the consequence of accepting the interpretation advanced on behalf of the appellant. If that view were adopted, the seven‑year period beginning on 15 August 1947 would render every member of the Punjab High Court Bar ineligible for appointment as a district judge, a result that merely demonstrates the weakness of the argument. Having dealt with the first two submissions of counsel for the appellant, the Court turned to the third submission. It was necessary to clarify that the Court had not decided that the expression “has been” must always be given the meaning proposed by the appellant’s counsel on the basis of strict grammatical rules. The Court observed that it would be seriously questionable to interpret an organic Constitution in such a narrow manner. The learned Additional Solicitor‑General drew the Court’s attention to other constitutional provisions, for example Article 5(c), where the expression has a different meaning in its context. The Court also noted a decision of the Allahabad High Court in Mubarak Mazdoor v. K. K. Banerji (1) A.I.R. 1958 All. 323, which gave a different meaning to a similar expression in the proviso to sub‑section (3) of section 86 of the Representation of the People Act, 1951. The Court considered it unnecessary to pursue this issue further because the respondents, when appointed as district judges, continued to be advocates of the Punjab High Court and possessed more than seven years of standing at the time of their appointment. Accordingly, they were clearly eligible for appointment under clause 2 of Article 233 of the Constitution. The Court then examined the remaining two respondents, Harbans Singh and P. R. Sawhney, whose names were not entered on the roll of advocates at the time they were appointed as district judges. The Court held that they also fulfilled the requirements of Article 233. Harbans Singh was in the service of the State when appointed, and counsel for him submitted that clause (2) of Article 233 did not apply. Even assuming that both Singh and Sawhney were recruited from the Bar and that their appointments had to be tested against the provisions of clause (2), the Court concluded that each of them satisfied the seven‑year standing requirement and therefore qualified for appointment as district judges.

In this case the respondents were duly enrolled as Advocates of the Lahore High Court, a fact that was not denied by any party. According to clause 6 of the High Courts (Punjab) Order, 1947, they were consequently recognised as Advocates authorised to practice before the Punjab High Court until such time as the Bar Councils Act, 1926, became operational. Section 8(2)(a) of that Act imposed on the Punjab High Court the duty to compile and keep a roll of Advocates, and mandated that the names of all such practitioners be entered on the very day the provision came into force, namely 28 September 1948. The accompanying proviso to subsection (2) of section 8 required each Advocate whose name was entered on the roll to deposit a fee of ten rupees with the Bar Council, a payment that could not realistically be made before the Bar Council itself had been constituted. Counsel for the appellant and the interveners, namely B. D. Pathak and Om Dutt Sharma, contended that this proviso effectively removed the right of the respondents to be automatically entered onto the roll under section 8(2)(a). The Court did not accept that view. It held that the combined operation of clause 6 of the 1947 Order and section 8(2)(a) of the Bar Councils Act, 1926, produced the following result: from 18 August 1947 up to 28 September 1948 the respondents were recognised as Advocates entitled to practise before the Punjab High Court; thereafter, on 28 September 1948, they were automatically placed on the Punjab High Court roll, subject only to the requirement of paying the ten‑rupee fee to the Bar Council. The Court further observed that the respondents never ceased to be Advocates at any point after 15 August 1947 and continued in that capacity until their appointment as District Judges. Moreover, they possessed the requisite standing of at least seven years, satisfying element (2) of article 233 of the Constitution. These findings, the Court noted, effectively resolved the appeal. The Court also recorded that an alternative submission had been advanced on behalf of the respondents, relying on section 4 of the Legal Practitioners Act, 1879, which argued that enrollment as Advocates of the Lahore High Court conferred a right to practise in any subordinate Court throughout India, a right that persisted even after the Lahore High Court ceased to be a High Court within Indian territory under the Constitution. Because the decision rested on the conclusions drawn from the 1947 Order and section 8 of the Bar Councils Act, the Court deemed it unnecessary to examine the alternative argument based on section 4 of the 1879 Act. The appellant’s writ petition, however, devoted considerable attention to the contention that the appointment of the respondents was invalid because it allegedly violated certain statutory service rules. The appellant asserted that in Punjab the superior judicial appointments comprised twenty‑seven posts, including eight listed positions, and that the appointment process had contravened the statutory framework. The discussion of these assertions was incomplete in the record, ending with the reference that “two out of”.

In the matter before the Court, it was noted that the eight listed posts within the superior judicial cadre were expressly designated for members of the Bar, while six posts were set aside for individuals belonging to the subordinate judicial service. The Court recalled that, following the partition of the Province, an allocation of eleven superior judicial positions was initially made to East Punjab; subsequently, this number was increased to twelve posts. The petitioner argued that, of these twelve positions, one‑third should be reserved for members of the Bar, another one‑third for persons drawn from the Provincial Civil Service (Judicial Branch), and the remaining one‑third should be filled on the basis of merit from either of the two aforementioned sources. The petitioner’s grievance centred on the claim that an excessive number of appointments had been made from the Bar, to the detriment of those belonging to the subordinate judicial service to which the petitioner himself belonged. The Court then directed the counsel representing the petitioner to identify any specific statutory rule that respondent 1 had allegedly violated in effecting the appointments in question. The petitioner’s counsel was unable to cite any particular rule and, apart from expressing a general dissatisfaction that too many individuals from the Bar had been appointed, could not demonstrate that the statutory requirement of reserving one‑third of the posts for service members had been breached. The Court observed that, without clear evidence of a breach of a statutory provision concerning the appointments, the matter did not warrant further discussion. Since such proof was entirely absent in the present case, the Court concluded that the petition could not succeed. Accordingly, the appeal was dismissed, and the petitioner was ordered to bear the costs of the proceedings.