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Gujarat High Court Allows Persons Having Full Time/Part Time Jobs Having Law Degree To Get Enrolled, Enrolment Certificate Shall Be Withheld

Sparsh Upadhyay

7 Nov 2020 2:36 PM GMT

    • Gujarat High Court Allows Persons Having Full Time/Part Time Jobs Having Law Degree To Get Enrolled, Enrolment Certificate Shall Be Withheld

    The Gujarat High Court on Friday (06th November) watered down Rules 1 and 2 of the Bar Council of Gujarat (Enrollment) Rules paving way for other professionals having LLB degree to get enrolled with the Bar.The Judgment delivered by the Bench of Chief Justice Vikram Nath Justice J. B. Pardiwala has in effect, cleared the path for professionals/Employed persons to be admitted as an Advocate and...

    The Gujarat High Court on Friday (06th November) watered down Rules 1 and 2 of the Bar Council of Gujarat (Enrollment) Rules paving way for other professionals having LLB degree to get enrolled with the Bar.

    The Judgment delivered by the Bench of Chief Justice Vikram Nath Justice J. B. Pardiwala has in effect, cleared the path for professionals/Employed persons to be admitted as an Advocate and to have eligibility to appear in the All India Bar's test to qualify to become a lawyer.

    The Bench ordered,

    "We read down Rules 1 and 2 respectively of the Bar Council of Gujarat (Enrollment) Rules so as to read that a person may be either in full or part-time service or employment or is engaged in any trade, business or profession, who otherwise is qualified to be admitted as an Advocate shall be admitted as an Advocate, however, the enrollment certificate of such a person shall be withheld with the Bar Council and shall lie in deposit with the Council until the concerned person makes a declaration that the circumstances mentioned in Rule 2 have ceased to exist and that he or she has started his/her practice."
    [NOTE: As per Rule 1 of the BCG Enrollment Rules, a person who is otherwise qualified to be admitted as an Advocate but is either in full or part-time service or employment or is engaged in any trade, business or profession is not to be admitted as an Advocate.
    As per Rule 2 of the BCG Enrollment Rules, every person applying to be admitted as an Advocate has to make a declaration in his application that he is not in full or part-time service or employment and that he is not engaged in any trade, business or profession contrary to the rules of State Bar Council and of the Bar Council of India made under the Act.]

    Background

    Notably, the Gujarat High Court on 06th October passed an interim order allowing an employed woman to appear for the All India Bar Examination (AIBE).
    It may be noted that one Twinkle Mangaonkar, an LLB degree holder was engaged with some other profession. Being a single earning member of the family, she had submitted before the Court that she could not afford to give up her present profession (as was required under BCG Rules).
    [Note: She did give an undertaking before the High Court that she will give up her present job once she clears the AIBE.]

    To this, the Bench of Chief Justice Vikram Nath and Justice J. B. Pardiwala had asked the Bar Council of Gujarat to accept her application (for AIBE) and had directed the Council to not ask the writ applicant to resign from her current employment.

    The Court in its Friday Judgment noted that "the Bar Council of Gujarat acted very smart so as to see that the order passed by this Court dated 06.10.2020 is diluted or not given effect too."

    The Court observed that the Bar Council of Gujarat issued the provisional enrollment certificate to the writ applicant (Twinkle Mangaonkar) on the evening of 14.10.2020 (in pursuant to Court interim order dated 06th October).
    "However, much to the dismay of the writ applicant, she was not able to get herself registered for the All India Bar Examination as the Enrollment Number mentioned in the certificate was not being accepted by the Online Registration System", states the Judgment delivered by the High Court.

    The Court noted that the Enrollment Number ordinarily issued by the Bar Council is like G/123-2020 or G/1234-2020, i.e,. consisting of numeral except for the 'G'.

    "The Bar Council of Gujarat issued the Enrollment Number as G/Provisional-I/2020, which has not been accepted by the Online Registration System", noted the Court further.

    Apart from this, before the Court, the argument canvassed on behalf of the Bar Council of India was that if the writ applicant is permitted to be enrolled as an Advocate, the same may open flood gates for the others.

    Court's Judgment

    The principal question which arose before the Court was whether it should strike down Rules 1 and 2 of the Bar Council of Gujarat (Enrollment) Rules being violative of Article 14 of the Constitution or it should uphold the validity by adopting the principle of 'reading down' or 'reading into' so as to make the rule effective and workable and ensure the attainment of the object of the rule.

    The Court deliberated on the questions as to what is the object behind Rules 1 and 2 of the State Bar Council (Enrollment) Rules and Rule 49 of the Bar Council of India Rules?. Why such a restriction is sought to be imposed? Why the statute does not permit a person enrolled as an advocate with any particular Bar Council of the State from taking up any other vocation?

    The Court specifically observed,

    "It is too much to say that a person desirous to get himself enrolled as an Advocate with the State Bar Council should be asked at its inception to give up any other vocation, business or job and only, thereafter, he can be enrolled on the roll of the State Bar Council."

    The Court further said,

    "We are dealing with a matter, in which, as single mother has come before us saying that no sooner she is enrolled as an Advocate after clearing the Bar Council Entrance Exam, then she would file a declaration on oath that she has given up the job which she has as on date. The lady is in a helpless situation. Today, if she gives up her job being a single mother, and god forbid if she is unable to clear the All India Bar examination, then she would be left without any means of livelihood."

    Accordingly, the Court, while reading down Rules 1 and 2 of the Bar Council of Gujarat (Enrollment) Rules directed the Bar Council of Gujarat as well as the Bar Council of India to act accordingly after applying the rules in consonance with what has been stated by the Court and issue a provisional Sanad to the writ applicant so as to entitle her to appear in the Bar Council of India Exam.
    It was also directed that the Bar Council of Gujarat shall issue the Enrollment Number to the writ applicant on the same line and in the same format as given to all other applicants who apply for enrollment as an Advocate and which is acceptable to and compatible with the On-line All India Bar Examination portal.

    Case title - Twinkle Rahul Mangaonkar v. Union Of India

    Click Here To Download Judgment

    [Read Judgment]




    Tags
    Gujarat High CourtEnrollmentBCG RulesBar Council of Gujarat RulesLawyersLegal Profession
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