April 17, 2019:
Allahabad High Court has held that an advocate accepting a job in bank ceases to be an advocate and therefore is not eligible for applying to any post in Higher Judicial Service requiring the condition of practicing advocate.
Justice Saumitra Dayal Singh speaking for a two judges bench has passed the judgment in case titled Shiv Kumar Pankha vs Honerable High Court Of Judicature At Allahabad on 05.04.2019
The petitioner 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. 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. When he applied for the UP Higher Judicial Service Examination, his candidature was not accepted.
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 cannot 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 Aggarwal Vs. Keshav Kaushik.
The High Court observed “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”.
High Court then observed “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”.
It then commented “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 respect of Deepak Aggarwal case, the High Court made a distinction observing “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”.
Ultimately, the High Court held that the petitioner is not eligible for the Uttar Pradesh Higher Judicial Service Examination.
Read the judgment here:
Share this Document :Picture Source :
