Read Order: M.S. SAUMYA Vs. THE STATE OF KERALA
New Delhi, April 6, 2022: The Kerala High Court has held that an advocate who takes up full time Government employment and thereupon voluntarily suspends from legal practice, cannot have the legal right to practise and cannot be said to be a member of the Bar.
The Bench of Justice Alexander Thomas and Justice Viju Abraham was dealing with an original application which challenged the impugned ruling of the Division Bench of the Kerala Administrative Tribunal pronouncing that the appellant in the present case could not be treated as a “member of the Bar” for seeking appointment as Assistant Public Prosecutor Grade II. The ruling of the Division Bench of the Administrative Tribunal was upheld by the Court.
The brief facts of the case were that the appellant secured her degree of law from the University of Calicut and thereafter she enrolled herself as an Advocate before the Bar Council of Kerala on December 30, 2007 in accordance with the Advocates Act,1961. However, the appellant after a tenure of five years got her legal practice suspended voluntarily before the Bar Council of Kerala on December 10,2012.
The dispute arose when the vacancy for the post of Assistant Public Prosecutor came out and the appellant was not allowed to apply for the same, as one of the eligibility criteria for selection and appointment for the same was that the individual should be the member of the bar. As the appellant had suspended her legal practice voluntarily, therefore she could not be acknowledged as the member of the Bar. However, the appellant contended the same by stating that she fulfilled all the qualifications of the Clause 7 of the notification and the suspension did not mean that she was never the “ member of the Bar”.
The respondent contended strongly to the contentions of the appellant by producing certain provisions of the Advocates Act,1961 and Rules of the BCI. The respondent referred to Sec. 41(3) of the Act which states that, where any Advocate is suspended or removed from practice, the certificate granted to him under Sec. 22, in respect of his enrollment shall be recalled. Additionally Rule 49 of the BCI was cited wherein it is stated that an Advocate gives up his legal practice voluntarily, he/she shall cease to practise as an Advocate.
The Division Bench stated that the applicant was a full time Government servant employed as a Lower Division Typist in the Excise Department of the State Government and the applicant had no case that she has been employed in a public employment solely or predominantly to act and or plead on behalf of a party in courts of law, etc.
Since the applicant had taken up a full time Government employment, as an LD Typist, then consequent to the voluntary suspension of legal practice, she ceased to be having the legal right to practise as an Advocate and consequently she ceased to be an Advocate so long as the voluntary suspension is in force, added the Bench.The High Court was of the view that the order passed by the Administrative Tribunal of Kerala was right in its reasoning.
The Court also referred to the case of Deepak Agarwal v. Keshav Kaushik and Ors., wherein the Apex Court held that Rule 49 of the BCI Rules states that an Advocate shall not be a full time salaried employee at any firm, corporation, government etc, as long as he continues to be in the legal profession.
Another case of Patna High Court in Amar Sinha v. Bar Council was also referred to wherein It was observed that if a person, having licensed to practise law under the Advocates Act, abandons his profession or is having no bonafide intend and interest to continue in the profession, then there is no reason to treat him as a member of the profession merely on the strength of his enrollment
The Bench stated,”…person like the applicant, who has initially secured enrollment as an Advocate in the State Bar Council and later has taken up full time Government employment as above, and has thereupon voluntarily suspended from legal practice as above, then such a person cannot be said to have the legal right to practise as an Advocate and hence, as per the provisions of the Act and the Rules supra, such a person cannot be said to be a member of the Bar as understood in Anx. A-1 selection notification and Anx. R-4 (b) special Rules. Such an eligibility condition of being a member of the Bar should be possessed by the candidate concerned not only as on the last date of submission of the application to the Public Service Commission but also thereafter, even as on the date of advice by the PSC and the date of appointment order issued by the appointing authority, etc.”
Making the above observations, the Court dismissed the original application and refused to interfere with the impugned order.