Allahabad High Court
Shiv Kumar Pankha And Another vs Honerable High Court Of Judicature At ... on 5 April, 2019
Bench: Pankaj Mithal, Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
[Reserved]
A F R
Case :- WRIT - A No. - 25580 of 2018
Petitioner :- Shiv Kumar Pankha And Another
Respondent :- Honerable High Court Of Judicature At Allahabad And Another
Counsel for Petitioner :- Tarun Varma
Counsel for Respondent :- Manish Goyal
Hon'ble Pankaj Mithal,J.
Hon'ble Saumitra Dayal Singh,J.
The two petitioners, who are candidates for the U.P. Higher Judicial Service Examination-2018 have filed this petition against the order dated 28.11.2018 rejecting their candidature and for seeking a direction to permit them to participate in the process of the said examination despite the fact that they are in full time employment as Law Officers with the State Bank of India (in short SBI) and Punjab National Bank (PNB) respectively.
Sri Tarun Verma, learned counsel for the petitioners at the very outset stated that he is pressing the writ petition only on behalf of petitioner no. 1 and the name of petitioner no. 2 may be treated as deleted. In other words, the petition remains on behalf of petitioner no. 1 alone.
It is admitted that the petitioner is a Scheduled Tribe candidate who did his LLB from Banaras Hindu University in 2010.He is enrolled as an advocate with the Bar Council of Delhi and is working as Law Officer with the SBI. After, he got himself enrolled on 8.10.2010 with the Bar Council of Delhi, he started practicing in district courts at Rohini and got himself registered as the member of Rohini Bar Association. He practiced as such from 8.10.2010 till 6.10.2014. He took up full time employment on 7.10.2014 with the SBI as Law Officer. The petitioner never surrendered his license to practice and it was never suspended despite information of employment to the Bar Council. During his employment with the SBI he appeared in courts and provided legal assistance to senior counsel of the Bank at Allahabad and Lucknow in the matters relating to Bank. He had appeared on behalf of the Bank before the Debt Recovery Tribunal/Debt Recovery Appellate Tribunal. In short, he regularly acted/pleaded before the various courts/tribunals on behalf of the Bank while in its service. The guidelines/circulars of the Reserve Bank of India permit the Law Officers of the Bank to participate in legal proceedings before the courts. Thus, the petitioner never ceased to practice law before the courts despite full time employment with the Bank. The petitioner while working as Law Officer with the Bank was not called upon to do any work which may be inconsistent with the legal profession/practice as an advocate.
The preliminary examination for the U.P. HJS was held on 20.7.2018. The name of the petitioner was not shown in the list of qualified candidates rather it appeared at serial no. 36 in the list of rejected candidates. His name was rejected as indicated due to the fact that he was in 'employment'.
The petitioner made a representation dated 9.10.2018 against the rejection of his candidature and to allow him to appear in the main examination scheduled to be held on 7.12.2018. The representation of the petitioner was rejected as the Selection Committee in its meeting held on 19.11.2018 after deliberation opined that as he was in permanent employment as Deputy Manager (Law) in SBI from 7.10.2014 till date and the documents provided with the representation do not reflect that he was in practice as an advocate rather in full time employment of the Bank. He was not an advocate of the standing required in Rule 5 (c) of the U.P. Higher Judicial Service Rules, 1975.
The rejection of the representation was communicated to the petitioner vide letter dated 28.11.2018.
It is in the above back-ground that the petitioner invoked the writ jurisdiction basically claiming that as he was enrolled as an advocate and despite his full time employment he continues to practice law by appearing before the courts, he is eligible for appointment in the UP HJS and that his candidature can not be rejected merely for the reason that he is in full time employment with the Bank.
In support of the above contention, the petitioner apart from relying upon the pleadings made in the petition placed reliance upon three Judges decision of the Supreme Court in the case of Deepak Aggarwal1 We have heard Sri Tarun Verma for the petitioner and Sri Samir Sharma for the respondents.
The pleadings exchanged by them have also been perused including the rejoinder affidavit though the statement was made that the petitioner would not rely upon it as no opportunity was given to the respondents to rebut the new facts pleaded therein.
It would be profitable to first refer to the various statutory provisions regarding the eligibility and appointment to the post of District Judge/UP HJS before proceeding to answer the controversy arising in this petition.
The first and foremost provision in this regard is Article 233 of the Constitution of India which reads as under:-
233. Appointment of district judges:-
"(1) Appointments of persons to be, and the posting and promotion of district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.
(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment."
Article 233 (2) in unequivocal term provides that a person not already in service shall be eligible for appointment as District Judge if he has been in practice as an advocate or pleader for not less than 7 years provided his name is recommended for appointment by the High Court. In other words, as regards a person not already in service what is required is that he should be an advocate or pleader of 7 years standing and that his name is recommended by the High Court for appointment as District Judge. Thus, 7 years of standing as an advocate is one of the essential eligibility condition for appointment as District Judge.
After the above constitutional provision comes the Bar Council of India Rules framed under Section 49 of the Advocates Act, 1961. Rules 47 to 52 of the said Rules provide regarding employment of an Advocate.
In this regard, Rule 49 is relevant of our purpose and is quoted below:-
"49. 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"
The aforesaid rule 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.
The UP HJS Rules, 1975 vide Rule 5 provides for the source of recruitment to the Higher Judicial Service. It provides for three sources namely; by promotion from the Civil Judge (Senior Division); by promotion through limited competitive examination of Civil Judge (Senior Division); and by direct recruitment from amongst the advocates.
The aforesaid 3rd source of recruitment is relevant for our purpose and therefore Rule 5 (c) alone of the Rules is being reproduced herein below:-
5. Source of recruitment:-
(a) ..................
(b) ...................
(c) by direct recruitment from amongst the Advocates of not less than seven years standing on the first day of January next following the year in which the notice inviting applications is published"
A bare reading of the aforesaid Rule reveals that the eligibility for direct recruitment to the UP HJS is from amongst the advocates of not less than 7 years standing meaning thereby that a minimum of 7 years standing as an Advocate is a sine-qua-non for selection/appointment in UP HJS through direct recruitment.
It is in this context that a question has arisen before us whether a person or an advocate who takes up full time employment with the Bank as Law Officer and in discharge of his duties may be appearing for the employer before the law courts would still continue to be an advocate so as to count the period in service towards his standing as an advocate for selection/appointment to the UP HJS/District Judge.
The issue is very simple if we go by the strict literary sense in which the aforesaid provisions have been couched.
Article 233 (2) clearly provides 7 years standing as an advocate as the condition for eligibility for appointment as District Judge. Same is the position that has been reiterated by Rule 5 (c) of the UP HJS Rules, 1975. Thus, 7 years of standing as an advocate on the relevant date is sine-qua-non for appointment as District Judge or in UP HJS. At the same time 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 looses 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.
The purpose of creating a legal fiction is to create an imaginary thing to be legally in existence even if it does not exist in reality. So the image created by legal fiction has to be recognized as real, otherwise the purpose of such legal fiction would stand frustrated.
In such a situation, the petitioner who practiced as an advocate from 8.10.2010 to 6.10.2014 and then took up a full time salaried employment did not have to his credit 7 years of standing as an advocate while applying for UPHJS. 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 above purpose. The period of full time employment can not be treated as time spent on practice as an advocate.
In Satish Kumar Sharma2 a three Judges Bench was seized with a controversy with regard to withdrawal of the enrolment of an advocate by the Bar Council as he was a permanent employee of Himachal Pradesh State Electricity Board and was holding the post of Deputy Secretary with it. In the said case the advocate obtained the law decree in the year 1975 and entered into full time employment of the Board as Law Officer Grade-II and later rose to the post to the Deputy Secretary. During the course of employment he was permitted by the Board to act an advocate on its behalf. Later, he also got himself enrolled on 9.7.1984 as an advocate. However, the enrollment was withdrawn as he was in full time employment. The withdrawal of the enrolment was challenged by him before the Division Bench of the High Court but failed. The matter went up to the Supreme Court where an affidavit of the advocate to the effect that his duties with the Board right from Law Officer to the present post were exclusively those of an advocate and that he had been personally appearing for the Board before the various courts was brought on record but even then it was held that as the appellant was undoubtedly a full time salaried employee at the time of his enrolment as an advocate and continues to be so he can not be conferred with the status of an advocate. His duties, may be exclusively to work/plead in courts but having regard to the plain language and clear term of Rule 49 of the Bar Council of India Rules and looking to the fact that his substantial and predominant duties were not that of a lawyer except for mere occasional appearance in some courts solely on behalf of the Board would not make him an advocate.
In Haniraj L Chulani (Dr.)3 it was observed that legal profession requires full time attention and would not countenance advocates riding two horses or more at a time.
In the said case the petitioner was a medical practitioner and wanted to get himself enrolled as an advocate after obtaining decree of LLB. It was in that connection that the Court observed as above and proceeded to observe further as under:-
"It is axiomatic that an advocate has to burn the midnight oil for preparing his cases for being argued in the court next day. Advocates face examination every day when they appear in courts. It is not as if that after court hours an advocate has not to put in hard work on his study table in his chamber with or without the presence of his clients who may be available for consultation. To put forward his best performance as an advocate he is required to give wholehearted and full-time attention to his profession. Any flinching from such unstinted attention to his legal profession would certainly have an impact on his professional ability and expertise. If he is permitted to simultaneously practise as a doctor then the requirement of his full-time attention to the legal profession is bound to be adversely affected. Consequently, however equally dignified may be the profession of a doctor he can not simultaneously be permitted to practice law which is a full-time occupation. It is for ensuring the full-time attention of legal practitioners towards their profession and with a view to bringing out their best so that they can fulfill their role as an officer of the court and can give their best in the administration of the justice, that the impugned rule has been enacted by the State Legislature."
In Deepak Aggarawal the question that was raised before the Supreme Court was whether a public prosecutor/ Assistant Public Prosecutor/District Attorney/Assistant District Attorney/Deputy Advocate General who is in full time employment of the Government seizes to be an advocate or pleader within the meaning of Article 233 (2) of the Constitution.
It is in context with the above controversy that the Supreme Court referring to its earlier decision in Sushma Suri 4 considered the meaning of the expression 'advocate' used in the un-amended Rule 49 of the Bar Council of India Rules and held that if a person was on the roll of the Bar Council and was engaged either by employment or otherwise by the Union of India or the State for the purpose of practice before a court as an advocate such a person does not seize to be an advocate.
The aforesaid decision was in reference to the employment of an advocate as a lawyer and not for doing any other office duty. The predominant purpose of the employment in such a situation was that of an advocate rather than that of an official of the Government.
A Division Bench of this Court in Writ A No. 59375 of 2014 (Smt. Rashmi Sharma Vs. State of U.P., and 3 others) vide judgment and order dated 12.11.2014 decided a similar controversy which also related to the recruitment of U.P. HJS. In the said case also the petitioner was appointed as a full time Deputy Manager (Law) in Andhra Bank. Thus his name was not included in the list of eligible candidates for UP HJS on the ground that he was in full time employment. The Division Bench on consideration of the entire case law on the subject including Deepak Aggarwal came to the conclusion that mere appearance of the candidate before the Lok Adalat as representative of the Bank does not make him eligible and that the decision of the Deepak Aggarwal is of no help. The petition was accordingly dismissed.
A similar view was taken by another Division Bench of this Court vide its judgment and order dated 1.9.2015 passed in Writ A No. 46742 of 2015 (Smt. Ruchi Chaudhari Vs. High Court of Judicature of Allahabad and another). In the said case the candidate for U.P. HJS after enrolment as an advocate had taken up job as a Senior Analyst para legal in a company CPA Global. The period of working in the aforesaid full time employment was not counted towards her standing as an advocate and the writ petition was dismissed holding that the decision of the Deepak Aggarwal does not help her.
In yet another case a Division Bench of this Court in deciding Writ A No. 32440 of 2014 (Deep Kumar and 3 others Vs. State of U.P., and another) vide its judgment and order dated 16.6.2014 distinguishing Deepak Aggarwal's case did not permit the Law Officers in employment of the Bank to participate for direct recruitment to the U.P. Higher Judicial Service Examination of the year 2014 as they were full-time salaried employees of the Bank and no longer the advocates.
A similar view was expressed by one another Division Bench of which one of us (Pankaj Mithal, J.) was a member in Rajesh Chaubey5 which related to the present recruitment to the UP HJS. The Division Bench considering the decision of the Supreme Court in Deepak Aggarwal's case and the eligibility condition contained in Article 333 (2) and Rule 5 (c) of the UP HJS Rules read with Rule 49 of the Bar Council of India Rules held that once a person by virtue of his full time employment ceases to be an advocate, the period of service rendered by him would not ennure to his benefit for determining his standing as an advocate.
It may worth noting that the case of Deepak Aggarwal related to Public Prosecutors or Advocates in employment of Government who by nature of the duties assigned continued to appear before the law courts regularly on behalf of the employer. Their work during employment was treated to be predominantly to be of an advocate and was thus added towards standing as an advocate.
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 can not 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.
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.
In the above situation, the persons employed as public prosecutor/District Authority predominantly discharge functions of advocates and would be recognized as advocates in the light of Deepak Aggarwal's case but in no other situation or employment. In the present case, there is no material or evidence to establish that the predominant function of the employment of the petitioner as defined/described in the letter of appointment issued to him by his employer Bank is that of practice as a lawyer and that the other functions discharged by him are only bare minimum or incidental. The Circular letter of the Reserve Bank of India does not seek to alter the terms and conditions of employment of the petitioner, neither do stray appearances recorded in some court cases establish that the Bank had engaged the services of the petitioner, predominantly to represent it in cases before courts, tribunals etc. In view of the aforesaid facts and circumstances, we are of the opinion that in the light of the legal fiction created by Rule 49 of the Bar Council of India Rules, the petitioner who has full time employment of the SBI ceased to be an advocate and his service period would not be counted/added in his practice as an advocate to make him eligible for UPHJS.
Accordingly, there is no force in the petition. It is therefore dismissed.
Order Date :- 5.4.2019 SKS