The Allahabad High Court on April 5, 2019, in the case of Shiv Kumar Pankha and Another v. Hon’ble High Court Of Judicature At Allahabad And Another, has observed that an advocate enrolled with the Bar Council ceases to practice as an advocate as soon as he/she takes a full time salaried employment even if he/she continues to occasionally appear in the court for his/her employer.
A Division Bench comprising of Justice Pankaj Mithal and Justice Saumitra Dayal Singh was hearing petitions filed by two candidates for the Uttar Pradesh Higher Judicial Service Examination-2018. The petitions were filed against the order passed on November 28, 2018, wherein their candidature was rejected on the ground that they are in full time employment as Law Officers in Banks.
As per the relevant rules for selection, 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. The contention raised by the petitioners 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.
However, the court rejected their contention and observed that occasional appearance of full time salaried employees in Courts/ Tribunals on behalf of their employer cannot be taken to mean that they are continuing to be in practice as advocates.
The court took into consideration Rule 49 of the Bar Council of India Rules, which states 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 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”
Thus holding that full time employee can’t be an advocate, the court said that "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."
Therefore, 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.
Further, distinguishing the petitioner’s case with the Supreme Court judgment in Deepak Aggarwal v. Keshav Kaushik, wherein persons employed as public prosecutor/District Authority were recognized as advocates, the Bench said that “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." Accordingly, in view of the above legal position, the Bench held that the petitioner who has full time employment of the SBI ceased to be an advocate and his service period will not be counted/added in his practice as an advocate to make him eligible for UPHJS. Therefore, the petition was dismissed.