Satish
Kumar Sharma Vs. The Bar Council of Himachal Pradesh [2001] Insc 1 (3 January 2001)
S.V.Patil,
R.C.Lahoti Shivaraj V. Patil, J.
L.J
In
this appeal, the appellant has assailed the resolution of the respondent dated
12.05.1996 withdrawing his enrolment as well as the order of the High Court
upholding it.
The
facts, which are considered necessary and relevant for the purpose of disposal
of this appeal, are the following:
After
securing LL.B. in 1975-76 the appellant was appointed as Assistant (Legal) by
the Himachal Pradesh State Electricity Board (for short the Board). The said
post was re-designated as Law Officer Grade-II in 1978. The Board, by its order
dated 6.9.1983 allowed the appellant to act as an advocate of the Board and
also ordered that the expenditure of his getting licence from the Bar Council
shall be met by the Board. His application seeking enrolment was sent by the
Secretary of the Board to the respondent on 13.10.1983. The Secretary of the
respondent by letter dated 28.3.1984 informed the Board that the Office Order
dated 6.9.1983 of the Board did not meet the requirements of the Rules and that
the appellant should first be designated as a Law Officer. The respondent also
requested the Board to send the order of appointment and the terms of such
appointment of the appellant. The Board by order dated 11.6.1984 modified the
earlier order dated 6.9.1983 and declared the appellant as a Law Officer of the
Board. On 5.7.1984 another order was passed by the Board by changing the
designation of the post of Law Officer Grade-II as Law Officer. It is,
thereafter, the respondent issued a certificate of enrolment dated 9.7.1984 to
the appellant. By Office Order dated 8.5.1991 the appellant was given ad hoc
promotion to the post of Under Secretary (Legal)- cum-Law Officer, which order
also stated that he would continue to work in the Legal Cell of the Secretariat
of the Board. Further on 14.1.1993 he was promoted as Under Secretary (Legal)-
cum-Law Officer on officiating basis.
By its
communication dated 13.9.1993 the respondent called upon the appellant to
appear before the Committee on 28.9.1993 along with all connected
documents/evidence in regard to his enrolment as an advocate. The said communication
indicated that in the meeting held on 10.7.1993 the respondent considered the
matter regarding enrolment of certain Law Officers and decided to constitute a
committee to examine the same. Thereafter on 27.12.1993 a show cause notice was
sent to the appellant requiring him to explain as to why his enrolment No.
HIM/35/1984 issued to him be not withdrawn. Reply to the said show cause notice
was to reach by 30.12.1993. After taking extension of time twice the appellant
sent a communication on 25.2.1994 stating that there was no ground for
withdrawal of his enrolment reserving his right to file a detailed reply. He
also stated that he would like to be represented by an advocate.
The
appellant was promoted as Deputy Secretary (Legal)-cum- Law Officer on ad hoc
basis by the Office Order of the Board dated 30.1.1995 and he was required to
continue to work in the Legal Cell.
In the
meeting held on 12.5.1996 the respondent passed a resolution unanimously
withdrawing the enrolment of the appellant with immediate effect and directed
him to surrender the enrolment certificate within 15 days therefrom. The
relevant and material part of the resolution reads: - ....
Shri Satish
Sharma is a permanent employee of the HPSEB and presently he is holding the
post of Deputy Secretary in the HPSEB and is in continuous employment of the
HPSEB and under Rule 49 he is debarred to be an Advocate. Moreover, he was
enrolled as an Advocate initially when he was appointed as Law Officer.
Thereafter he had been getting promotions and working as Assistant
Secretary/Deputy Secretary in the HPSEB. In fact he was required to intimate
the said fact to the Bar Council immediately on promotion and should have
surrendered the licence but he failed to do so.
Under
these circumstances there is no justification to retain Shri Satish Sharma on
the Roll of the Bar Council as an Advocate.
It is,
thus, resolved that the Enrolment No.HIM/45/1984 be and is hereby withdrawn
with immediate effect and he is ordered to surrender his Enrolment Certificate
within a period of 15 days.
It is
this resolution, validity and correctness of which was challenged by the
appellant before the High Court in the writ petition contending that the
enrolment was validly granted to him as he fulfilled the requirements of relevant
provisions of the Advocates Act, 1961; he also pointed out that advocates, who
obtained enrolment and later on joined State Government service in the
Prosecution Department, have continued to retain their enrolment and defend the
State Government in the courts; no rules have been framed by the respondent
preventing persons like the appellant from getting enrolled, it was not open to
the respondent to withdraw the certificate of enrolment;
according
to him Rule 49 of the Rules framed by the Bar Council of India has been
misconstrued and misunderstood by the respondent. In short it was contended
that the respondent had no jurisdiction to withdraw the enrolment certificate
granted to the appellant. The Division Bench of the High Court by an elaborate
and well- considered order dealing with all aspects dismissed the writ
petition. Hence the appellant has filed this appeal assailing the order of the
respondent as well as the order of the High Court affirming it.
Learned
senior counsel for the appellant, while reiterating the contentions urged
before the High Court, submitted that the High Court failed to appreciate that
the second para of the Rule 49 carves out an exception to the Bar created by
Rule 49, precluding a full time salaried employee from practicing as an
advocate; the said exception was subject only to one limitation, i.e., an
express bar created by Rules, made by any State Bar Council in exercise of its
powers under Section 28(2)(d) read with Section 24(1)(e) of the Advocates Act,
1961; since the respondent has not framed any rules expressly barring such Law
Officers from being enrolled as advocates the appellant was entitled for
enrolment. According to the learned counsel the High Court also failed to note
that it was not a case of refusal of enrolment to a Law Officer but it was a
case wherein the respondent was estopped from canceling the certificate of
enrolment issued to the appellant by the very respondent as early as on
9.7.1984; therefore, cancellation of enrolment after almost a decade and half
based on an erroneous interpretation of Rule 49 of the Rules of Bar Council of
India, was unjust. It was also urged that the appellant had placed all the
material before the respondent before obtaining his enrolment certificate and
there was no concealment of facts on his part and that the appellant was
discriminately treated. The learned counsel added that the impugned action of
the respondent was unwarranted as it amounted to a punishment of removal of the
name of an advocate from the Roll of the State Bar Council as postulated by
Section 35(d) of the Act without following the procedure.
Per
contra, the learned counsel representing the respondent made submissions
supporting the orders impugned in this appeal. According to him the appellant
was not at all entitled for enrolment as an advocate having regard to Rule 49
of the Bar Council of India Rules in the absence of any enabling provision to a
full time salaried employee for enrolment as an advocate. The learned counsel
submitted when the appellant was not at all entitled to be enrolled as an
advocate the action taken by the respondent after lapse of some time is of no
consequence and the delay in taking action in a case like this itself does not
give protection so as to sustain the enrolment. He further submitted that there
was no discrimination as alleged by the appellant looking to the nature of
duties of the prosecutors in the State Departments and the appellant.
We
have carefully considered the submissions made by the learned counsel for the
parties. We consider it useful and appropriate to look at the relevant
provisions of the Advocates Act, 1961 (for short the Act) and of the Bar
Council of India Rules (for short the Rules) before examining the rival
contentions on their merits. The provisions are: - Section 24. Persons who may
be admitted as advocates on a State roll. (1) subject to the provisions of this
Act, and the rules made thereunder, a person shall be qualified to be admitted
as an advocate on a State roll, if he fulfills the following conditions, namely
(a) ........ (b) ........ (c) ........ (d) ........
(e)he
fulfills such other conditions as may be specified in the rules made by the
State Bar Council under this Chapter;
xxx xxx
xxx Section 28. Power to make rules. (1) A State Bar Council may make rules to
carry out the purposes of this Chapter.
(2) In
particular and without prejudice to the generality of the foregoing power, such
rules may provide for (a) ........ (b) ........ (c) ........
(d) the
conditions subject to which a person may be admitted as an advocate on any such
roll;
(3) No
rules made under this Chapter shall have effect unless they have been approved
by the Bar Council of India.
xxx xxx
xxx Section 49. General power of the Bar Council of India to make rules. (1)
The Bar Council of India may make rules for discharging its functions under
this Act and in particular, such rules may prescribe.
(a)
........
(ab)
qualifications for membership of a Bar Council and the disqualifications for
such membership;
(ac)
......... (ad) ......... (ae) ......... (af) ......... (ag) the class or
category of persons entitled to be enrolled as advocates;
(ah)
the conditions subject to which an advocate shall have the right to practice
and the circumstances under which a person shall be deemed to practise as an
advocate in a court;
(b)
.........
(c) the
standards of professional conduct and etiquette to be observed by advocates;
xxx xxx
xxx Chapter II of the Rules made under Section 49(1)(c) of the Act read with
the proviso thereto deals with standards of professional conduct and etiquette.
Preamble of Chapter II reads: - An advocate shall, at all times, comport
himself in a manner befitting his status as an officer of the Court, a
privileged member of the community, and a gentleman, bearing in mind that what
may be lawful and moral for a person who is not a member of the Bar, or for a
member of the Bar in his non-professional capacity may still be improper for an
Advocate. Without prejudice to the generality of the foregoing obligation, an
Advocate shall fearlessly uphold the interests of his client, and in his
conduct conform to the rules hereinafter mentioned both in letter and in
spirit. The rules hereinafter mentioned contain canons of conduct and etiquette
adopted as general guides; yet the specific mention thereof shall not be
construed as a denial of the existence of other equally imperative though not
specifically mentioned.
Rule
49. 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.
Nothing
in this rule shall apply to a Law Officer of the Central Government of a State
or of any Public Corporation or body constituted by statute who is entitled to
be enrolled under the rules of his State Bar Council made under Section 28(2)(d)
read with Section 24(1)(e) of the Act despite his being a full-time salaried
employee.
Law
Officer for the purpose of this Rule means a person who is so designated by the
terms of his appointment and who, by the said terms, is required to act and/or
plead in Courts on behalf of his employer.
In
terms of Section 24 of the Act, a person shall be qualified to be admitted as
an advocate if he satisfies the provisions of the Act, the Rules and the rules,
if any, made by the State Bar Council besides fulfilling other conditions as
laid down in this Section. Even if no rules were framed under Section 28(2)(d)
read with Section 24(1)(e) of the Act by a State Bar Council, enrolment of a
person shall be subject to the provisions of the Act and the Rules. Section 28
has conferred rule making power on a State Bar Council to carry out the
purposes of Chapter III of the Act. A State Bar Council can prescribe
conditions subject to which a person may be admitted on any such roll under
Section 28(2)(d) of the Act. In the present case the respondent has not framed
rules in this regard. Under Section 49 of the Act the Bar Council of India has
power to make rules for discharging its functions under the Act. Rules are
framed by the Bar Council of India exercising the powers conferred on it. In the
Preamble, extracted above, to the Rules made under Section 49(1)(c) of the Act
read with the proviso thereto it is stated that an advocate shall at all times
conduct himself in a manner befitting to his status as an officer of the court,
a privileged member of the community, and a gentleman, bearing in mind that
what may be lawful and moral for a person who is not a member of the Bar, or
for a member of the Bar in his non-professional capacity may still be improper
for an advocate. It is further stated that an advocate shall fearlessly uphold
the interest of his client, and in his conduct conform to the rules. As is
clear from the Rules contained in Chapter II of the Rules an advocate has a
duty to court, duty to the client, duty to opponent and duty to colleagues
unlike a full time salaried employee whose duties are specific and confined to
his employment.
Rule
49 has a specific purpose to serve when it states that an advocate shall not be
a full time salaried employee of any person, government, firm, corporation or
concern. As already noticed above, Section 24(1) specifically states that a
person in addition to satisfying other conditions has also to satisfy the
provisions of the Act and Rules. In other words, the Rules made by Bar Council
of India are to be satisfied. Mere non framing of rules by a State Bar Council
under Section 28(2)(d) read with Section 24(1)(e) of the Act cannot dispense
with obedience to Rule 49.
The
profession of law is called a noble profession.
It
does not remain noble merely by calling it as such unless there is a continued,
corresponding and expected performance of a noble profession. Its nobility has
to be preserved, protected and promoted. An institution cannot survive in its
name or on its past glory alone. The glory and greatness of an institution
depends on its continued and meaningful performance with grace and dignity. The
profession of law being noble and honourable one, it has to continue its
meaningful, useful and purposeful performance inspired by and keeping in view
the high and rich traditions consistent with its grace, dignity, utility and
prestige.
Hence
the provisions of the Act and Rules made thereunder inter alia aimed at to
achieve the same ought to be given effect to in their true spirit and letter to
maintain clean and efficient Bar in the country to serve cause of justice which
again is noble one.
This
court in Dr. Haniraj L. Chulani vs. Bar Council of Maharashtra & Goa ,
while dealing with the validity of Rule 1 of the Maharashtra and Goa Bar
Council Rules relating to enrolment of Advocates eligibility conditions, in para
20 has observed that `legal profession requires full time attention and would
not countenance an Advocate riding two horses or more at a time. That was a
case where a medical practitioner wanted to enroll himself as an Advocate after
obtaining a degree of Bachelor of Law.
Rules
framed by the Maharashtra Bar Council denied simultaneous practice of another
profession alongwith practice of law. It was contended for the appellant that
even though he was a practicing surgeon, if given entry to legal profession, he
would give an undertaking that he would not practice medicine during the court
hours. Such a plea was not accepted stating that he would be torn between two
conflicting loyalties; loyalty to his clients on the one hand and loyalty to
his patients on the other. The court proceeded to say It is axiomatic that an
advocate has to burn the midnight oil for preparing his cases for
being argued in the court next day. Advocates face examination every day when
they appear in courts. It is not as if that after court hours an advocate has
not to put in hard work on his study table in his chamber with or without the
presence of his clients who may be available for consultation. To put forward
his best performance as an advocate he is required to give wholehearted and
full-time attention to his profession. Any flinching from such unstinted
attention to his legal profession would certainly have an impact on his
professional ability and expertise. If he is permitted to simultaneously practise
as a doctor then the requirement of his full-time attention to the legal
profession is bound to be adversely affected. Consequently however equally
dignified may be the profession of a doctor, he cannot simultaneously be permitted
to practise law which is a full-time occupation. It is for ensuring the
full-time attention of legal practitioners towards their profession and with a
view to bringing out their best so that they can fulfill their role as an
officer of the court and can give their best in the administration of justice,
that the impugned rule has been enacted by the State Legislature.
The
High Court also has referred to and relied on this judgment.
With
this background we proceed to consider merits of the contentions raised by the
respective parties.
There
appeared to be difficulty for the Advocates even to take up teaching of law as
full time employees. The Central Government in exercise of the powers conferred
by Section 49-A of the Act framed the Advocates (Right To Take Up Law Teaching)
Rules, 1979. As per Rule 3 of the said Rules, a practicing Advocate has a right
to take up teaching of law in any educational institution affiliated to
university so long as teaching of law does not exceed three hours a day and
such employment may be deemed to be a part time employment.
Since
the terms of appointment, nature of duties and service conditions relating to
the appellant have also bearing in resolving the controversy, it is considered
appropriate to briefly refer to them. By the Memorandum dated 24.6.1976, the
appellant was appointed for the first time by the Board to the post of
Assistant (Legal) in the pay-scale of Rs. 225-15-300-20- 500 + 50 per month as
special pay. In the said Memorandum, it is stated that the post was temporary
and his services were liable to be terminated at any time without any reasons
being assigned to; his confirmation in the permanent vacancy depended inter alia
on his work and conduct and he will have to serve anywhere in the organization
of Himachal Pradesh State Electricity Board. The appellant accepting these
terms of appointment, joined service of the Board. By the Office Order dated
6.9.1983, the Board was pleased to allow the appellant, Law Officer, Grade-II
to act as Advocate of the Board in the existing scale of Rs. 700-1200/-. The
Board was further pleased to order that the expenditure for getting enrolment
as an Advocate shall be borne by the Board. In response to the application made
for the enrolment of the appellant as an Advocate, the Secretary of the
respondent by a letter dated 28.3.1984 informed the appellant that the Office
Order dated 6.9.1983 of the Board did not meet the requirements of the Rules
and that he first be designated as Law Officer. Accordingly the Board, by its
order dated 11.6.1984 modifying its earlier order dated 6.9.1983, declared him
as Law Officer of the Board in the existing pay-scale. The Board passed one
more order on 5.7.1984 changing the designation of the post of Law Officer
(Grade-II) as Law Officer with immediate effect and appointed the appellant as
Law Officer in the existing pay scale. In the said order it is also stated that
by virtue of the said appointment the appellant shall be required to act and
plead in any court of law on behalf of the Board. It is only thereafter, the
appellant was enrolled as an advocate on 9.7.1984 by the respondent. By the
Office Order dated 8.5.1991 the Board promoted him as Under Secretary
(Law)-cum-Law Officer in the given pay-scale purely on ad hoc basis making it
clear that the said ad hoc promotion would not confer any right on the
appellant to claim seniority in that Grade. In the said order it is also stated
that he will continue to work in the Legal Cell of the Secretariat of the
Board. He was promoted on 14.1.1993 on the recommendation of Class-I
Departmental Promotion Committee on officiating basis in the pay-scale of
Rs.3000-4500 plus Rs.400 as special pay per month indicating that he would
continue to work in the same Legal Cell. By order dated 30.1.1995 the Board
again promoted him as Deputy Secretary (Law)-cum-Law Officer in the pay-scale
of Rs.3700-5000 plus Rs.400 as special pay per month purely on ad hoc basis
with the other conditions remaining the same.
This
Court on 10.8.2000 passed the following order:- During the course of hearing, a
question arose as to whether the appellant, while serving on full time basis
with Himachal Pradesh State Electricity Board, is confining his work only to
acting as an Advocate for and on behalf of the Board, including appearances in
the Court, or has some other duties also assigned to him in his capacity as
Deputy Secretary-cum-Law Officer. Mr. V.A. Bobde, learned senior counsel
appearing on behalf of the appellant submits that since this issue never arose
before, he shall have to seek instructions and file an appropriate affidavit
supported by relevant documents. Four weeks time, as prayed for, is granted for
the purpose. An advance copy shall be furnished to the learned counsel opposite
who will have four weeks thereafter to file response, if any.
List
after nine weeks.
Pursuant
to the said Order, the appellant has filed the affidavit on 12.09.2000. The
affidavit shows that he was further promoted as Additional Secretary (Law). In
the affidavit he has stated that his duties with the Board right from Law
Officer to Additional Secretary (Law) have been exclusively those of an
Advocate and he had been personally appearing before various courts. It is also
stated that he was/is heading Legal Cell/Law Section, the duties in respect of
which were stipulated in the Regulation of Business issued by the Board on
April 4, 1974 which were amended in February, 2000. As far as the Legal Cell
was concerned, they remained the same. Regulation of Business relating to
C-Legal are as follows:-
25.
Every wing of the Board shall consult Law Section, whenever it is proposed to:-
(i) issue
a statutory regulation, notification or order, or
(ii) sanction
under a statutory power the issue of any regulation, by law, notification or
order by a subordinate authority; or
(iii) submit
to Government any draft statutory regulation, notification or order for issue
by them; the draft shall be referred to the Law Section for opinion and advice.
26.(1)
All Sections shall consult the Legal Section on :-
(a) any
general legal principles arising out of any case and;
(b) the
construction of statutes, Arts, Regulation, Statutory Orders and notifications
etc. etc.
(c) the
institution or withdrawal of any prosecution or other legal/quasi legal
proceedings including arbitration, taxation proceedings, engagement of
counsels, their fee, etc. etc.
(d) all
documents having legal implications, except routine matters, may only be
accepted after legal scrutiny.
(2)
All such references shall be accompanied by an accurate statement of the facts
of the case and the point or points on which the advice of the Legal Section is
desired.
Looking
to the various appointment/promotion orders issued by the Board to the
appellant and Regulation of Business relating to Legal Cell of the Board
aforementioned, we can gather that :- (1) the appellant was a full time
salaried employee at the time of his enrolment as an Advocate and continues to
be so getting fixed scales of pay;
(2) he
is governed by the conditions of service applicable to the employees of the
Board including disciplinary proceedings. When asked by us, the learned counsel
for the appellant also confirmed the same;
(3) he
joined the services of the Board as a temporary Assistant (Legal) and continues
to head the Legal Cell after promotions, a wing in the Secretariat of the
Board;
(4) his
duties were/are not exclusively or mostly to act or plead in courts; and (5)
promotions were given from time to time in higher pay- scales as is done in
case of other employees of the Board on the basis of recommendation of
Departmental Promotion Committee.
On a
proper and careful analysis, having regard to the plain language and clear
terms of Rule 49 extracted above, it is clear that: -
(i)
the main and opening paragraph of the Rule prohibits or bars an advocate from
being a full time salaried employee of any person, Government, firm,
corporation or concern so long as he continues to practice and an obligation is
cast on an Advocate who takes up any such employment to intimate the fact to
the concerned Bar Council and he shall cease to practice so long as he
continues in such employment;
(ii) para
2 of the Rule is in the nature of an exception to the general Rule contained in
main and opening paragraph of it. The bar created in para 1 will not be applicable
to Law Officers of the Central Government or a State or any public corporation
or body constituted by a statute, if they are given entitlement under the Rules
of their State Bar Council. To put it in other way, this provision is an
enabling provision. If in the Rules of any State Bar Council, a provision is
made entitling Law Officers of the Government or authorities mentioned above,
the bar contained in Rule 49 shall not apply to such Law Officers despite they
being full time salaried employees;
(iii)
not every Law Officer but only a person who is designated as Law Officer by the
terms of his appointment and who by the said terms is required to act and/or
plead in courts on behalf of his employer can avail the benefit of the
exception contained in para 2 of Rule 49.
It is
an admitted position that no rules were framed by the respondent entitling a
Law Officer appointed as a full time salaried employee coming within the
meaning of para 3 of Rule 49 to enroll as an Advocate. Such an enrolment has to
come from the rules made under Section 28(2)(d) read with Section 24(1)(e) of
the Act. Hence it necessarily follows that if there is no rule in this regard,
there is no entitlement. In the absence of express or positive rule, the
appellant could not fit in the exception and the bar contained in the first
paragraph of Rule 49, was clearly attracted as rightly held by the High Court.
Added to this, in the light of terms of appointment/promotion orders issued by
the Board to the appellant, it is clear that the first appointment of the
appellant was as Assistant (Legal). Subsequent promotions as Under Secretary
(Legal)-cum-Law Officer, Deputy Secretary (Legal)-cum-Law Officer and
Additional Secretary (Law) show that the appellant was not designated as Law
Officer. Similarly, there is no indication in any of the appointment/promotion
orders issued to the appellant that he was to act or plead in the courts of law
on behalf of the Board except in the order dated 5.7.1984. At any rate from
these orders it cannot be said that he was/is required to act or plead in
courts on behalf of the employer mainly or exclusively so as to come within the
meaning of Law Officer for the purpose of Rule 49. It appears the modified
orders dated 11.6.1984 and 5.7.1984 were issued by the Board in order to get
enrolment of the appellant as an advocate on the roll of the respondent. None
of the appointment/promotion orders issued to the appellant indicate that his
duties were exclusively to act or plead in courts on behalf of the Board as Law
Officer. These orders clearly show that the appellant was required to work in
the Legal Cell of the Secretariat of the Board; was given different pay scales;
rules of seniority were applicable; promotions were given to him on the basis
of the recommendations of the Departmental Promotion Committee; was amenable to
disciplinary proceedings, etc.
Further
looking to the nature of duties of Legal Cell as stated in the regulation of
business of the Board extracted above, the appellant being a full time salaried
employee had/has to attend to so many duties which appear to be substantial and
pre-dominant. In short and substance we find that the appellant was/is a full
time salaried employee and his work was not mainly or exclusively to act or
plead in court. Further there may be various challenges in courts of law
assailing or relating to the decisions/actions taken by the appellant himself
such as challenge to issue of statutory regulation, notification or order;
construction of statutory regulation, statutory orders and notifications, the
institution/withdrawal of any prosecution or other legal/quasi legal
proceedings etc. In a given situation the appellant may be amenable to
disciplinary jurisdiction of his employer and / or to the disciplinary
jurisdiction of the Bar Council. There could be conflict of duties and
interests. In such an event, the appellant would be in an embarrassing position
to plead and conduct a case in a court of law. Moreover, mere occasional
appearances in some courts on behalf of the Board even if they be, in our
opinion, could not bring the appellant within the meaning of Law Officer in
terms of para 3 of Rule 49. The decision in Sushma Suri vs. Govt. of National
Capital Territory of Delhi and Another , in our view, does not advance the case
of the appellant. That was a case where meaning of expression from the Bar in
relation to appointment as District Judge requiring not less than seven years
standing as an Advocate or a pleader came up for consideration. The word
Advocate in Article 233(2) was held to include a Law Officer of Central or
State Government, public corporation or a body corporate who is enrolled as an
Advocate under exception to Rule 49 of Bar Council of India Rules and is
practicing before courts for his employee. Para 10 of the said judgment reads :-
Under Rule 49 of the Bar Council of India Rules, an advocate shall not be a
full-time employee of any person, Government, firm, corporation or concern and
on taking up such employment, shall intimate such fact to the Bar Council concerned
and shall cease to practise as long as he is in such employment. However, an
exception is made in such cases of law officers of the Government and corporate
bodies despite his being a full-time salaried employee if such law officer is
required to act or plead in court on behalf of others. It is only to those who
fall into other categories of employment that the bar under Rule 49 would
apply. An advocate employed by the Government or a body corporate as its law
officer even on terms of payment of salary would not cease to be an advocate in
terms of Rule 49 if the condition is that such advocate is required to act or
plead in courts on behalf of the employer. The test, therefore, is not whether
such person is engaged on terms of salary or by payment of remuneration, but
whether he is engaged to act or plead on its behalf in a court of law as an
advocate. In that event the terms of engagement will not matter at all. What is
of essence is as to what such law officer engaged by the Government does whether
he acts or pleads in court on behalf of his employer or otherwise. If he is not
acting or pleading on behalf of his employer, then he ceases to be an advocate.
If the terms of engagement are such that he does not have to act or plead, but
does other kinds of work, then he becomes a mere employee of the Government or
the body corporate. Therefore, the Bar Council of India has understood the
expression advocate as one who is actually practicing before courts which
expression would include even those who are law officers appointed as such by
the Government or body corporate.
[emphasis
supplied] As stated in the above para the test indicated is whether a person is
engaged to act or plead in a court of law as an Advocate and not whether such
person is engaged on terms of salary or payment by remuneration. The essence is
as to what such Law Officer engaged by the Government does.
In the
present case on facts narrated above relating to his employment as well as in
the absence of rule made by the respondent entitling a Law Officer to enroll as
an Advocate despite being a full time salaried employee, the appellant was not
entitled to enrolment as an advocate.
Hence,
the appellant cannot take benefit of the aforementioned judgment.
The
argument of the learned senior counsel for the appellant was that what is not
prohibited may be taken as permitted and when the appellant satisfied the
requirements of Section 24, he was entitled for enrolment. This argument
overlooks a positive requirement as already stated above contained in para 2 of
Rule 49 that unless a concerned State Bar Council has framed rules entitling
Law Officers to enroll as Advocates even though they are full-time employees,
they are not entitled to enrolment. The contention that the respondent could
not have cancelled enrolment of the appellant almost after a decade and half
and that the respondent was estopped from doing so on the principle of
promissory estoppel, did not impress us for the simple reason that the
appellant suffered threshold bar and was not at all eligible to be enrolled as
an Advocate and his enrolment itself was clearly contrary to Rule 49 of the
Rules in the light of the facts stated above. Hence neither the principles of
equity nor promissory estoppel will come to the aid of the appellant.
Similarly, there is no substance in the argument of the learned counsel for the
appellant that removal of the name of the appellant from the roll of the State
Bar Council amounted to a punishment under Section 35(d) of the Act without
following procedure. It is clear from the facts of the case that action was not
taken against the appellant on the ground of misconduct by initiating any
disciplinary proceedings. But in this case the very enrolment of the appellant
as an advocate itself was contrary to law and he was not at all entitled for
enrolment. By cancellation or withdrawal of enrolment things were only set
right and the mistake committed on misunderstanding was corrected.
We
find no merit in the ground urged that the appellant was discriminated against
the prosecutors and the Government pleaders. The duties, nature of work and
service conditions of the appellant, details of which are already given above,
are substantially different from the duties and nature of work of prosecutors
and Government pleaders particularly in relation to acting and pleading in
court.
Thus
the appellant stood on a different footing. The High Court in paragraphs 24-26
has dealt with this aspect of the case and rightly rejected the argument based
on the ground of discrimination.
The
last and alternative submission of the learned counsel for the appellant was
that in case the appellant gives up his full time employment or ceases to be
employee of the Board, he may be allowed to practice maintaining his seniority
as an advocate from the date of his enrolment on the rolls of the respondent;
if the enrolment is cancelled or withdrawn he would lose the seniority for no
fault of him. There is a difficulty in accepting this argument.
When
the appellant was not entitled for enrolment and his enrolment itself was
opposed to law, such enrolment was non-est. Hence the question of maintaining
his seniority on the rolls of the respondent does not arise. However, we make
it clear that in case the appellant resigns or ceases to be a full time employee
of the Board, it is open to him if so desired to apply afresh for enrolment as
an advocate.
This
order does not stand in the way of the appellant seeking enrolment if he is
otherwise eligible and entitled.
In the
light of the facts stated and discussions made above, we do not find any merit
in this appeal. Hence it is dismissed. No cost.
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