WP/23931/2008 of T. Kumar Babu Vs Union of India, rep. by its Secretary to the Honble on 24 December 2008

1. Union of India, represented by its Secretary to the Hon'ble President of India, New Delhi.

2. Government of Andhra Pradesh,

represented by its Secretary to the

Hon'ble Governor of Andhra Pradesh, Hyderabad.

3. High Court of Andhra Pradesh,

represented by its Registrar General (Administration), High Court Buildings, Hyderabad.

4. Justice B. Seshashayana Reddy,

Judge of High Court of Andrha Pradesh, Hyderabad.

...Respondents

Petition under Article 226 of the Constitution of India prayingthat in the circumstances stated in the affidavit filed herein the HighCourt will be pleased to issue an appropriate Writ Order or Directionmore particularly one in the nature of Writ of Quo-Warranto, declaringthe appointment of the Respondent No. 4 as a District & SessionsJudge, Grade-II in the year 1990, as illegal, arbitrary and violative of Article 233(2) of the Constitution of India and Rule 49 of theBar Council of India Rules and consequently direct the RespondentNo. 4 to quit the office of the Judge of High Court of Andhra Pradesh,which is a benefit obtained by him by virtue his appointment as aDistrict & Sessions Judge, Grade-II as he is not entitled to hold thesame.

Counsel for the petitioner : Sri T. Kumar Babu, Petitioner in person Counsel for respondent No.1 : Sri A. Rajasekhar Reddy Assistant Solicitor General.

Counsel for respondent No.2 : NoneCounsel for respondent No.3 : Smt. M. Bhaskara LakshmiCounsel for respondent No.4 : None The Court made the following:ORDER: (Per Sri Anil R. Dave, C.J.)

1. The petitioner, who is a practising Advocate, has challenged thevalidity of appointment of respondent No.4 as a Judge of the HighCourt of Andhra Pradesh by way of this petition.

2. The petitioner has appeared in person and has submitted thatrespondent No.4 was appointed as a District & Sessions Judge,Grade-II in 1990 and thereafter he was elevated as an AdditionalJudge of the High Court of Andhra Pradesh in 2002 and subsequently,he became permanent Judge of the High Court in 2004.

3. According to the petitioner, the appointment of respondent No.4as District & Sessions Judge, Grade-II in 1990 was bad in law for thereason that respondent No.4 was working as a Law Officer in AndhraBank, and according to the provisions of Article 233(2) of theConstitution of India and Rule 49 of the Bar Council of India Rules,respondent No.4 could not have been appointed as a District &Sessions Judge, Grade-II in 1990. It has been further submitted thatrespondent No.4 was appointed as a Judge of the High Court onlybecause he was a District & Sessions Judge and as his appointmentas District & Sessions Judge was bad in law, even his appointment asa Judge of this Court is also bad in law. He has, therefore, impliedlyprayed that the appointment of respondent No.4 as a Judge of thisCourt be quashed and set aside.

4. The petitioner has relied upon Article 233(2) of the Constitutionof India, which reads as under:

“ A person not already in the service of the Union or of the Stateshall 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 isrecommended by the High Court for appointment.”

Rule 49 of the Bar Council of India Rules reads as under:

“An advocate shall not be a full-time salaried employee of anyperson, government, firm, corporation or concern, so long as hecontinues to practise, and shall, on taking up any such employment,intimate the fact to the Bar Council on whose roll his name appearsand shall thereupon cease to practise as an advocate so long as hecontinues in such employment.”

5. According to the petitioner, as respondent No.4 was serving as aLaw Officer in Andhra Bank and his service in Andhra Bank canneither be considered as service under Union of India or StateGovernment and as respondent No.4 was not in actual practice at thetime of his appointment, he could not have been appointed as per theprovisions of Article 233(2) of the Constitution of India.

6. Thereafter, it has been submitted by him that according to Rule49 of the Bar Council of India Rules, if an Advocate leaves the practiceand takes up any employment, he cannot be considered as anAdvocate and according to the said rule, as respondent No.4 was notan Advocate at the time of his appointment, the initial appointment ofrespondent No.4 was bad in law.

7. On the other hand, it has been submitted by the learnedAssistant Solicitor General, Sri A. Rajasekhar Reddy appearing forUnion of India and Mrs. M. Bhaskara Lakshmi, learned Advocateappearing for respondent No.3, that the appointment of respondentNo.4 to the post of District & Sessions Judge was just and proper. Ithas been further submitted by them that in Writ Petition No.9209 of1989, the validity of appointment of respondent No.4 as District &Sessions Judge had been challenged. After hearing the learnedAdvocates, a Division Bench of this Court had rejected the petition on24[th] July, 1992. Our attention has been drawn to the afore-statedjudgment and it has been submitted that as the issue with regard to appointment of respondent No.4 as District & Sessions Judge hadalready been decided, this Court need not go into it again and it wasalso submitted by the learned Advocate that the petition was filed withsome oblique motive and, therefore, it should be dismissed.

8. Upon hearing the learned Advocates and looking to the facts ofthe case and more particularly, in view of the judgment delivered inWrit Petition No.9209 of 1989 by this Court, in our opinion, theappointment of respondent No.4 to the post of District & SessionsJudge was just and proper and, therefore, even his elevation to thepost of Judge of this Court cannot be said to be improper.

9. The Division Bench of this Court had elaborately discussed theissue in Writ Petition No.9209 of 1989 and by relying upon thejudgment delivered in the case of Rameshwar Dayal v. State of Punjab[[1]], the Division Bench came to the conclusion that theappointment of respondent No.4 was just and proper for the reasonthat in fact, respondent No.4 had practised for requisite number ofyears before his appointment to the post of Law Officer in AndhraBank. After interpreting Article 233(2) of the Constitution of India, theDivision Bench came to the conclusion that it was not necessary forrespondent No.4 to be in actual practice immediately before hisappointment to the post of District & Sessions Judge.

10. In view of the fact that the appointment of respondent No.4 to thepost of District & Sessions Judge had been challenged in the past andthe same facts and legal issues had been discussed by the DivisionBench in the afore-stated petition, we need not go into all the factsagain, and relying upon the judgment delivered in Writ PetitionNo.9209 of 1989, we hold that the appointment of respondent No.4was just and proper.

11. At this juncture, it was submitted by the petitioner that he was nota party to Writ Petition No.9209 of 1989 and, therefore, the entire issueshould be considered afresh.12. We do not accept the afore-stated submission made by the petitioner for the reason that the same issue had been decided earlierand, therefore, in our opinion, we need not go in detail once again. 13. For the afore-stated reasons, we do not see any substance in thepetition as respondent No.4 was held to be eligible for appointment tothe post of District & Sessions Judge in the afore-stated writ petitiondecided by this Court and, therefore, we do not go into the said issueagain.

14. The petition is, therefore, rejected with no order as to costs.

24[th] December, 2008

ANIL R. DAVE, C.J.

R. SUBHASH REDDY, J.

To1. The Secretary to the Hon'ble President of India, RashtrapathiBhavan , New Delhi.

2. The Secretary to the Hon'ble Governor of Andhra Pradesh, Raj Bhavan, Hyderabad.

3. The Registrar General, High Court of Andhra Pradesh, High Court Buildings, Hyderabad.

4. One copy to Sri A. Rajasekhar Reddy, Asst. Solicitor General, High Court Buildings, Hyderabad (OPUC). Court Buildings, Hyderabad (OPUC).

5. Two CD copies.

ARS