The Kerala High Court has ruled that a serving Government Employee who holds a Bar Enrollment Certificate but had gave up legal practice for Govt service cannot be called as a 'Bar Member'
The Division Bench of Justice Alexander Thomas and Justice Viju Abraha in view of the Advocates Act and Bar Council of India Rules held that a person who was initially enrolled as an Advocate and later voluntarily suspended legal practice cannot be entitled to Bar Membership and practise as an Advocate.
In challenge to the Kerala Administrative Tribunal' decision, the question that was posed to the High Court was as to whether a serving Government employee, who had earlier secured enrollment as an Advocate in terms of the provisions contained in the Advocates Act, and who had later suspended his legal practice for taking up the above Government employment, can be treated as a “member of the Bar” for the purpose of selection and appointment as Assistant Public Prosecutor Grade II?
The applicant herein had secured a degree in law from the University of Calicut and thereafter got herself enrolled as Advocate before the Bar Council of Kerala on 30.12.2007. She commenced practice as an Advocate in the courts at Alappuzha, including the criminal courts there. Later she got appointment as Lower Division Typist (LDT) in the Excise Department of the Government of Kerala and pursuant to the said appointment order, she has joined Government service as LDT on 16.10.2012. She rendered voluntary suspension from legal practice as per Rules.
She has now sought for position of Public Prosecutor, and has contended that since she had already secured enrollment with the Bar Council of Kerala, as an Advocate, the mere fact that she had later suspended her legal practice, for the purpose of taking up Government employment, will not result in a scenario that she cannot be treated as a member of the Bar.
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It was further contended that all what is involved in the process of suspension of legal practice for the purpose of taking up any permanent employment, is only to suspend legal right to practise, but the enrollment in the Bar continues and therefore, persons like the applicant should be treated as a member of the Bar.
She, therefore has claimed her candidature for APP Gr.II, in terms of Clause 7 of Anx.A-1 selection notification, as on 4.10.2017.
The Court analysed various provisions and rules and stressed that as per Rule 43 under Section IVA Part VI under Chapter II of the BCI Rules inter alia it has been stipulated that, where the Advocate has taken full time service or part time service or engages in business or any avocation inconsistent with his practising as an Advocate, then he shall send a declaration to that effect to the respective State Bar Council in which the Advocate is enrolled, within ninety days from the date of such disqualification and if the Advocate does not file the said declaration or fails to show sufficient cause for not filing such declaration provided therefor, the Committee constituted by the State Bar Council under Rule 42 may pass orders suspending the right of the Advocate to practise, etc.
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The Court stated that the cumulative effect of Rule 43 supra and Rule 49 supra is that an Advocate shall not be a full time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practise, and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears and shall thereupon cease to practise as an Advocate so long as he continues in such employment.
It further noted that Rule 5(2) and 5(3) make it clear that, where the person concerned,after voluntarily suspending his practice for taking up permanent employment, subsequently desires to resume legal practice, which obviously is after giving up the said employment, should make an application before the enrollment committee of the State Bar Council, along with the requisite affidavit and if the enrollment committee is satisfied about the bona fides of the said request that his request is to be allowed, etc. then the enrollment committee can order for the resumption of the legal practice and only then the surrendered original certificate of enrollment has to be returned to the person concerned.
In view of the above, the Court held that once an Advocate, who is enrolled with the State Bar Council, subsequently takes up permanent employment, including Government employment, then he/she is bound to intimate the State Bar Council about the said factual aspects and then should request for voluntary suspension of the legal practice and has to surrender the original certificate of enrollment to the State Bar Council.
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The Court also pointed out that though the Bar Council of India Rules make provisions for voluntary suspension of legal practice, there are no explicit provisions regarding the said scenario as per the provisions of the Advocates Act, 1961. Rule 49 supra mandates that, upon voluntarily suspending the practice, the said person shall cease to practise as an Advocate as long as he continues in such employment and Rule 5(1) supra mandates that the original certificate of enrollment will have to be surrendered.
The Court concluded that as per the present rules and regulations, the Advocate concerned, after voluntary suspension of legal practice, will cease to have the legal right to practise.
The Court also referred to SC judgement in Deepak Aggarwal Vs. Keshav Kaushik And Others, 2013 wherein it was observed that wherein it has been observed that Rule 49 of the Bar Council of India Rules provides that Advocate shall not be a full time salaried employee of any person, government, firm, corporation or concern, so long as he continues to be in legal practice and that the term “employment” referred to in Rule 49 does not cover the employment of an Advocate, who has been solely or, in any case, predominantly employed to act and/or plead on behalf of his client in courts of law and that if a person has been engaged to act and/or plead in a court of law as an Advocate although by way of employment on terms of salary and other service conditions, such employment is not what is covered by Rule 49 supra, as he continues to practise law but, on the other hand, if he is employed, not mainly to act and/or plead in a court of law, but to do other kinds of legal work, the prohibition in Rule 49 immediately comes into play and then he becomes a mere employee and ceases to be an Advocate, etc.
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Distinguishing the case in hand from the above, the Court stated that the applicant herein is a full time Government servant employed as a Lower Division Typist in the Excise Department of the State Government and the applicant has no case that she has been employed in a public employment solely or predominantly to act and or plead on behalf of a party in courts of law, etc.
"Since the applicant has taken up a full time Government employment, as an LD Typist, then consequent to the voluntary suspension of legal practice, she ceases to be having the legal right to practise as an Advocate and consequently she ceases to be an Advocate so long as the voluntary suspension is in force."
In conclusion, the Court said that a person like the applicant, who has initially secured enrollment as an Advocate in the State Bar Council and later has taken up full time Government employment as above, and has thereupon voluntarily suspended from legal practice as above, then such a person cannot be said to have the legal right to practise as an Advocate and hence, as per the provisions of the Act and the Rules supra, such a person cannot be said to be a member of the Bar as understood in Anx. A-1 selection notification and Anx. R-4 (b) special Rules.
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"Such an eligibility condition of being a member of the Bar should be possessed by the candidate concerned not only as on the last date of submission of the application to the Public Service Commission but also thereafter, even as on the date of advice by the PSC and the date of appointment order issued by the appointing authority, etc"
The challenge was thus accordingly dismissed.
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