Uttarakhand High Court
Ravindra Saini vs High Court Of Uttarakhand on 5 October, 2017
Bench: Sudhanshu Dhulia, Lok Pal Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/B) No. 282 of 2017
Ravindra Saini .........Petitioner
Versus
High Court of Uttarakhand & another
........Respondents
Present:- Mr. A.V. Pundir, Advocate for the petitioner.
Mr. Paresh Tripathi, Advocate for the High
Court/respondent no. 1.
Mr. Piyush Garg, Advocate for respondent no. 2.
Coram: Hon'ble Sudhanshu Dhulia, J.
Hon'ble Lok Pal Singh, J.
Hon'ble Sudhanshu Dhulia, J. (Oral) The petitioner before this Court has filed the present writ petition with the following prayers:-
"(i) Issue a writ in the nature of certiorari quashing the impugned notification dated 13.06.2017 only pertaining to the petitioner (contained as Annexure No. 6 to this writ petition).
(ii) Issue a writ, order or direction in the nature of mandamus commanding/directing the respondent to allow the petitioner to appear and participate in the selection process by treating him as eligible candidate.
(iii) Issue a writ, order or direction in the nature of mandamus commanding/directing the respondent to appear in the preliminary examination to be held on 16.07.2017."
2. The petitioner feels aggrieved since he was declared disqualified from appearing in the Uttarakhand Higher Judicial Service examination, which was conducted by the High Court of Uttarakhand. Vide its advertisement and notification dated 18.04.2017, the High Court had advertised seven posts of Judicial 2 Officers (Higher Judicial Service in Uttarakhand). One of the essential qualifications for the post of Higher Judicial Service (from hereinafter referred to as "HJS") was that a candidate must be an Advocate of not less than seven years standing as on the first day of January, 2017 and secondly, Prosecuting Officer/Assistant Prosecuting Officers are also treated to be an Advocate and eligible as per the judgment of Hon'ble Supreme Court in Civil Appeal No. 561 of 2013, Deepak Agarwal Vs. Keshav Kaushik & others.
3. On the administrative side, the High Court of Uttarakhand has rejected the application of the petitioner on ground that he did not fulfil seven years of mandatory period of practice or rather "standing" as an Advocate and nor did he qualify as per condition no. 2 of the notification issued by the High Court of Uttarakhand on 18.04.2017. Aggrieved, the petitioner has filed the present writ petition before this Court.
4. Since the preliminary examination was scheduled for 16.07.2017, this Court vide its interim order dated 14.07.2017 permitted the petitioner to appear in the preliminary examination, subject to the final decision in the writ petition.
5. This Court has now been informed that the petitioner has failed to qualify in the preliminary examination. All the same, considering the importance of the matter, we have been persuaded both by the learned Counsel for the High Court Mr. Paresh Tripathi as well as by the learned counsel for respondent no. 2 Mr. Piyush Garg to give a decision as to the eligibility in such cases. We therefore have heard the parties at length and we 3 proceed to give a decision on the merit of the case, though for the petitioner the matter is now of merely an academic interest. The learned counsel for the petitioner Sri Ajay Veer Pundir agrees to advance arguments on behalf of the petitioner.
6. The case of the petitioner before this Court is that he was enrolled as an Advocate with the State Bar Council on 09.08.2003 and practiced till 18.09.2009. The petitioner has also submitted his certificates which say that the petitioner had practiced in civil and criminal side at Civil Court, Roorkee, District-Haridwar for a period between 09.08.2003 to 18.09.2009. All the same, in his response to an advertisement given by a public sector corporation, namely, Uttarakhand State Infrastructure Development Corporation Limited, Dehradun which is presently known as Bridge, Ropeway, Tunnel and Other Infrastructure Development Corporation of Uttarakhand Limited (in short "BRIDCUL"), the application of the petitioner on contractual basis as a Law Officer was accepted and thereafter he was duly appointed as a Law Officer under the full term employment of the Corporation on a fixed salary of Rs.25,000/- per month.
7. According to the learned counsel for the High Court and learned counsel for the Bar Council of Uttarakhand, the petitioner stands disqualified by virtue of his full time employment, inasmuch as, from the date 16.09.2009 onwards there is now a rupture in the professional career of the petitioner as on 16.09.2009 he ceases to be an "Advocate" in terms of Rule 49 of the Bar Council of India Rules. Rule 49 of the Bar Council of India Rules reads as under:-
"49. An advocate shall not be a full-time salaried employee of any person, government, 4 firm, corporation or concern, so long as he continues to practise, and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears and shall thereupon cease to practice as an advocate so long as he continues in such employment.
"That as Supreme Court has struck down the appearance by Law Officers in Court even on behalf of their employers the Judgment will operate in the case of all Law Officers. Even if they were allowed to appear on behalf of their employers all such Law Officers who are till now appearing on behalf of their employers shall not be allowed to appear as advocates. The State Bar Council should also ensure that those Law Officers who have been allowed to practice on behalf of their employers will cease to practice. It is made clear that those Law Officers who after joining services obtained enrolment by reason of the enabling provision cannot practice even on behalf of their employers."
That the Bar Council of India is of the view that if the said officer is a whole time employee drawing regular salary, he will not be entitled to be enrolled as an advocate. If the terms of employment show that he is not in full time employment he can be enrolled."
8. Learned counsel for the petitioner on the other hand relied upon paragraph 98 of the judgment of the Hon'ble Apex Court in the case of Deepak Aggarwal Vs. Keshav Kaushik & others reported in (2013) 5 SCC
277. Paragraph 98 of the aforesaid judgment reads as under:-
"98. Admittedly, by the above resolution of the Bar Council of India, the second and third paragraphs of Rule 49 have been deleted but we have to see the effect of such deletion. What Rule 49 of the BCI Rules provides is 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. The "employment" spoken of in Rule 49 does not cover the employment of an advocate who has been solely or, in any case, predominantly employed to act and/or plead on 5 behalf of his client in courts of law. If a person has been engaged to act and/or plead in court of law as an advocate although by way of employment on terms of salary and other service conditions, such employment is not what is covered by Rule 49 as he continues to practise law but, on the other hand, if he is employed not mainly to act and/or plead in a court of law, but to do other kinds of legal work, the prohibition in Rule 49 immediately comes into play and then he becomes a mere employee and ceases to be an advocate. The bar contained in Rule 49 applies to an employment for work other than conduct of cases in courts as an advocate. In this view of the matter, the deletion of the second and third paragraphs by the Resolution dated 22-6-2001 has not materially altered the position insofar as advocates who have been employed by the State Government or the Central Government to conduct civil and criminal cases on their behalf in the courts are concerned."
9. Learned counsel for the petitioner would argue that though apparently Rule 49 of the Bar Council of India prohibits the petitioner and places him outside the definition of an Advocate, but the interpretation which has been given by the Hon'ble Apex Court in the above cited case makes the present petitioner eligible for consideration on the post of Higher Judicial Service, as though he is admittedly under the continuous employment of a public sector firm, but the work which he has been performing as a Law Officer of the firm was predominantly to act and plead for the cases of the Corporation in a Court of law, and therefore he could not be considered as "ineligible" for the post.
10. What has to be seen here is not only whether the petitioner was in full time employment of the State or its instrumentality, but whether the petitioner while doing that was primarily pleading in a Court of law and performing the duties of an Advocate or Lawyer or not. In case the petitioner was performing duties in a Court of 6 law as an Advocate then the benefit given to the public prosecutors by the Hon'ble Apex Court can be considered. All the same, a heavy duty is cast upon the petitioner to prove before this Court that his working as a Law Officer with the Corporation was of a nature where he has been predominantly working in the Court of law, pleading his cases as a Lawyer for his employer. At this juncture, it must be stated that there is no averment in the writ petition by the petitioner that the work done by the petitioner as a Law Officer was done predominantly of a lawyer. All the same, this Court still gave an opportunity to the petitioner to raise this argument and lead evidence on this. The petitioner was given the liberty to prove that he was predominantly working in a Court room on behalf of his client.
11. In order to substantiate this aspect, the petitioner has filed four documents before this Court. The first is a certificate of his employer dated 10.07.2017 which is post filing of the present writ petition before this Court, which reads as under:-
"To Whom It May Concern This is certified that Mr. Ravindra Saini, Law Officer engaged with BRIDCUL formerly Uttarakhand State Infrastructure Development Corporation Ltd. (USIDCL) since 19.09.2009 on contractual basis and from 27.12.2016 on permanent basis.
He is predominantly engaged to perform following duties:-
1. To appear and plead cases individually/with other counsel before the Court.
2. To appear and plead before various Tribunals/other Quasi Judicial Forum.
3. To provide legal opinion.
4. Legal drafting and pleading.
He bears good moral character. We wish him all the best for his future.
(Anup Kumar) 7 General Manager (HR)"
12. A bare perusal of the aforesaid document suggests that even the said certificate does not disclose that the petitioner was predominantly engaged before a Court of law. It does not also suggest that the petitioner would be doing pleading and working on behalf of BRIDCUL in a Court of law, advancing arguments in cases on behalf of his client.
13. The second evidence filed by the petitioner is the order-sheets relating to a Civil Suit No. 381 of 2014 pending before the Civil Judge (S.D.), Dehradun which do suggest that on various dates the petitioner has signed order-sheets. A perusal of the order-sheets show that the signature of the petitioner is predominantly on dates where there has been a non effective hearing, and also the signature of the petitioner are in the capacity of a "Law Officer". This piece of evidence also does not help the petitioner.
14. The third evidence filed by the petitioner is regarding his caveat, which he has filed in the Court of Civil Judge (S.D.), Dehradun in Caveat Case No. 145 of 2014 in the case of Uttarakhand State Infrastructure Development Corporation Limited Vs. Stup Consultants Private Limited, wherein it is clearly stated that the applicant Shri Ravindra Saini will defend the case on behalf of the Department and the caveat suggests that the counsel/law officer. This does not prove much as under Section 148A of the Code of Civil Procedure (in short "CPC"), a caveat can also be filed by a person aggrieved. It need not be filed only by a lawyer.
815. The fourth evidence which has been filed by the petitioner is an arbitration award, where he appeared before the learned Arbitrator along with one Shri Anup Kumar, General Manager (HR). The award itself nowhere states that the petitioner has appeared in the capacity of an Advocate. In other words, there is nothing to show even by the petitioner that he appeared as an Advocate which could have substantiated his claim to be an Advocate.
16. Paragraph 98 of the judgment in the case of Deepak Aggarwal (Supra) clearly demonstrates that in order to come within the eligibility criteria, a person must have predominantly worked as an Advocate before a Court of law. In the present case, it does not seem to be the case.
17. The other argument of the petitioner is that what is important in this case is of seven years of standing and it has already been upheld by the Hon'ble Apex Court in the case of Mahesh Chandra Gupta Vs. Union of India & others, reported in (2009) 8 SCC 273 that seven years of standing would mean a person enrolled as an Advocate who worked as a Law Officer. However, this argument of the petitioner is absolutely of no relevance in the present context as there are specific Rules framed by the Bar Council of India which create a bar for the petitioner. The reference here is Rule 49 referred above.
18. Petitioner has also filed along with the writ petition his certificate issued by District Judge, Haridwar. The certificate itself is not a valid proof that the petitioner has seven years of standing as an Advocate 9 in the light of the specific provisions contained in the Bar Council Rules.
19. The writ petition has therefore no merit and is hereby dismissed. Under the circumstances, however, there will be no order as to costs.
(Lok Pal Singh, J.) (Sudhanshu Dhulia, J.) 05.10.2017 Ankit/