Advocate Loses Right To Practice When He Enters Into Full Time Salaried Employment: Allahabad HC [Read Judgment]
"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"
The Allahabad High Court has observed that a person enrolled as an advocate ceases to be one as soon as he/she takes a full time salaried employment even if he/she continues to occasionally appear in Court for his/her employer.
The Division bench comprising of Justice Pankaj Mithal and Justice Saumitra Dayal Singh observed that occasional appearance of Full Time Salaried employees in Courts/ Tribunals on behalf of their employer can not be taken to mean that they are continuing to be in practice as advocates.
Two candidates for the Uttar Pradesh Higher Judicial Service Examination-2018 had approached the High Court challenging rejection of their candidature on the ground that they are in full time employment as Law Officers in Banks.
The relevant rules for selection provided that a candidate is eligible for the post of District Judge only if he has been for not less than seven years an advocate or a pleader. Their contention was that the guidelines/circulars of the Reserve Bank of India permit the Law Officers of the Bank to participate in legal proceedings before the courts, and thus they never ceased to practice law before the courts despite full time employment with the Bank.
Full Time Employee Can't Be An Advocate
While considering their plea, the court noted Rule 49 of the Bar Council of India Rules and observed that it completely prohibits 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, it said. The court added:
"Rule 49 of the Bar Council of India Rules clearly stipulates that an advocate who accepts a full time salaried employment ceases to practice as an advocate so long as he continues in such employment. In other words, as soon as an advocate enters into full time salaried employment, he loses the right to practice even though he may represent the employer before the law courts. 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."
In this case, the court said that the period of full time employment as Law Officer with the Bank despite his appearance before the court as part of the service condition would not make him a practicing advocate for the purpose of selection/appointment as District Judge. The bench also distinguished the petitioner's case with the Supreme Court judgment in Deepak Aggarwal Vs. Keshav Kaushik and said:
"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. It is but natural 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. 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. An advocate is a person who assists, defends, pleads, or prosecute for another. At times he may represent the State or the public at large in matters of public concern such as in criminal cases and for this limited purpose is a public advocate. The public prosecutor or the district attorney as such by the nature of his work is a public advocate. He as such despite his full time engagement with the State does not cease to be advocate. This is an exception to Rule 49 of the Bar Council of India Rules."
Advocate As Important As A Judge
While dismissing the writ petition, the bench emphasized the need to have sufficient experience as Advocate to become a judge. It said:
"An advocate is a responsible officer of the Court. He is as important as a Judge in the matter of dispensation of justice. He is virtually a minister of justice equally in line with a Judge. He acquires the skills of advocacy by experience and it is often said that at times experience is much more important than knowledge. It is more true in the profession of law wherein devotion to higher cause, the cause of truth and justice is more vital. One gains knowledge through experience by regular practice which can not be acquired otherwise while in employment or by appearance in some stray cases. It is therefore elementary for holding the post of DJ/UPHJS to have atleast 7 years of actual standing as an advocate and not the theoretic knowledge of law as in full time employment."