April 18, 2019
The High Court of Allahabad in the case prohibited the Petitioner from appearing in U.P. Higher Judicial Service Examination on the ground that he entered into full time salaried employment.
Case name: Shiv Kumar Pankha And Another v. Honorable High Court of Judicature at Allahabad and Another
In the case, the Petitioner had applied for candidature in the U.P. Higher Judicial Service Examination-2018. However, his application was rejected by the Selection Committee on the ground that they were in full time employment as Law Officer with the State Bank of India. The candidate was enrolled as an advocate with the Bar Council of Delhi.
The Two-Judge Bench of the High Court of Allahabad in view of the statutory provisions as enumerated under Article 233 of the Constitution and Rule 49 of the Bar Council of India Rules. Other observations made by the High Court in the case are as under:
- In view of the facts involved in the case it would be relevant to state Rule 49 of the Bar Council of India Rules which enunciates that An advocate shall not be a full-time salaried employee so long as he continues to practise, and shall, on taking up any 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.
- Referring to the aforesaid rule, the High Court opined that the Rule completely prohibited an advocate from taking any full time employment during his continuance of practice and provides that if he so takes up employment, he shall inform the Bar Council whereupon he shall cease to be in practice as an advocate so long his employment continues. Therefore, as soon as an advocate enrolled with the Bar Council takes up full time salaried employment he ceases to practice as an advocate.
- That Rule 49 of the Bar Council of India Rules creates a legal fiction to the effect that a person duly enrolled as an advocate ceases to be one as soon as he takes a full time employment on salary even if continues to occasionally appear in law Court.
- The Court also noted that the position in the case of employment in other capacity is quite different from that of employment as public prosecutor. In such other services appearance before the Court is occasional and is not the predominant part of the duties. Therefore, mere occasional appearance of such employees in Courts/ tribunals while in full time employment in few cases that too solely on behalf of their employer cannot be taken to mean that they are continuing to be in practice as advocates.
- That in such employment their main job is not that of pleading and arguing cases before the law courts on behalf of a variety of persons as is expected of an advocate. The nature of their duties is mostly of advising, conveyance etc., which may not allow them enough time for regular appearance before the law courts thus depriving them of experience of a lawyer.
- That any effort to treat persons in such employment as practicing advocates would be de hors of Rule 49 of the Bar Council of India Rules.
.The entire case can be accessed here.