TaxTMI 
TaxTMI 
2020 (11) TMI 508
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.... they prohibit admission of a person who is otherwise qualified to be admitted as an advocate, but is either in full or part time service or employment or is engaged in any trade, business or profession, as an advocate: Alternatively the Hon'ble Court be pleased to read down Rule 1 and Rule 2 and declare that a person who is otherwise qualified to be admitted as an advocate, but is either in full or part time service or employment or is engaged in any trade, business or profession, shall be admitted as an advocate, however the enrollment certificate of such a person shall be withheld with the Bar Council and shall lie in deposit with the Council, until the advocate makes a declaration that the circumstances mentioned in Rule 2 have ceased to exist and that he continues to start his practice: (B) that pending the hearing and final disposal of this petition, the Hon'ble Court be pleased to direct the Bar Council of Gujarat to accept application form of the Applicant and permit the Applicant to take up the Bar Council Examination." 2. We need not state the facts of this litigation in details as those have been stated in the order passed by this Co....
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....Rules"). As is mentioned in Rule 1 of the Enrollment Rules, a person who is otherwise qualified to be admitted as an advocate but is either in full or part time service or employment or is engaged in any trade, business or profession is not to be admitted as an advocate. Rule 2 of the Enrollment Rules requires every person applying to be admitted as an advocate, to make a declaration in his application that he is not in full or part time service or employment and that he is not engaged in any trade, business or profession contrary to the rules of State Bar Council and of the Bar Council of India made under the Act. In case, he is, he has to disclose full particulars of such service, employment or engagement. Rule 10 provides that in the event of Rule 2 coming into force, the advocate has to deposit his enrollment certificate with the Bar Council as a mark of his having ceased to practice and that such certificate shall lie in deposit with the Council, until the advocate makes a declaration that the circumstances mentioned in Rule 2 have ceased to exist and that he intends to resume his practice. 2016 The writ applicant took up studies of law after a gap of 20 years since h....
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....l appearing for the Bar Council of Gujarat and Mr. Manan A. Shah, the learned counsel appearing for the Bar Council of India. 4. With the consent of the parties concerned and in the peculiar facts and circumstances of the case and also with a view to protect the interest of all concerned, we pass the following interim order. (i) The writ applicant shall submit an application for enrollment on or before 09.10.2020, the copy of which is at Annexure-D to the writ application. (ii) The interim order is passed only for the purpose of allowing the writ applicant to appear in the All India Bar Examination and this order shall not be treated as a permission to the writ applicant to continue with both, i.e, her employment and practice. (iii) Since fees of Rs. 16,600/- is already lying deposited with the Bar Council of Gujarat, the payment of further fees shall not be insisted upon. In case the current rules require deposit of fees higher than Rs. 16,600/-, the writ applicant undertakes to pay such fees promptly. (iv) The Bar Council of Gujarat shall accept such application and shall not require the writ applicant to resign from her current employ....
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....lled as an advocate. If the opponent No.1-original petitioner, who is holding a job, is allowed to be enrolled as an advocate, then the same would open flood gates for others. Even otherwise, the same is contrary to the Bar Council of Gujarat (Enrollment) Rules and well settled principles of law, of this Hon'ble Court and the Apex Court. The relevant judgments passed by this Hon'ble Court and Hon'ble Supreme Court are already annexed at Annexure-R2 (pg. 87 to 130) in the affidavit-in-reply filed on behalf of applicant-Bar Council of India in Special Civil Application No.15123 of 2019. The applicant therefore prays this Hon'ble Court to review/recall the order dated 6.10.2020 passed in captioned petition and the mention of consent as recorded in Para-4 of the order be removed. 6. The applicant humbly submits that the order dated 6.10.2020, would run contrary to the rules framed by the Bar Council of India, Bar Council of Gujarat and the settled law as per the judgments of this Hon'ble Court and the Hon'ble Apex Court. The applicant therefore prays this Hon'ble Court to recall the order dated 6.10.2020 passed in captioned petition. 7. The....
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....ed by this Hon'ble Court amounting to clear disobedience and contempt of the order of the Hon'ble Court. The applicant reserves the right to file an appropriate application under The Contempt of Courts Act, 1971. 7. Considering that the Online Registration closes on 17.10.2020, it is necessary that a further direction is issued to the Respondents to issue an Enrollment Number which is issued to all other applicants and which is compatible with the Online Registration system hence this application." 6. Thus, the Bar Council of Gujarat, by its communication dated 14.10.2020 addressed to the writ applicant, stated as under:- "To Ms. Twinkle Rahul Mangaonkar A-14, Shaligram 3, Vishal Tower Road, Prahladnagar, Ahmedabad-380051. Madam, I here to inform you that as per the oral order dated 06.10.2020 passed by the Hon'ble High Court of Gujarat in Special Civil Application No.15123 of 2019, the Bar Council of Gujarat office had received your enrollment application form on 09.10.2020, without insisting fees of Rs. 16,000/- as the same was deposited by you earlier. I have further to inform you tha....
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.... 2. I further undertake that if after the issuance of enrollment certificate and after passing of the All India Bar Exam, I continue to be in full or part time service or employment or is engaged in any trade, business or profession, I shall deposit my enrollment certificate with the Bar Council and shall not practice as an Advocate. What is stated hereinabove is true to my knowledge. Solemnly affirmed on this 9th day of October, 2020 at Ahmedabad." 8. The Bar Council of Gujarat acted very smart so as to see that the order passed by this Court dated 06.10.2020 is diluted or not given effect too. The Bar Council of Gujarat issued the provisional enrollment certificate to the writ applicant on the evening of 14.10.2020. However, much to the dismay of the writ applicant, she was not able to get herself registered for the All India Bar Examination as the Enrollment Number mentioned in the certificate is not being accepted by the On-line Registration System. The Enrollment Number ordinarily issued by the Bar Council is like G/123-2020 or G/1234-2020, i.e,. consisting of numeral except for the 'G'. The Bar Council of Gujarat issued the Enrollment Numbe....
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....e under the Act. In case, he is, he has to declare full particulars of such service, employment or engagement. 15. Rule 10 provides that in the event of Rule 2 coming into force, the advocate has to deposit his enrollment certificate with the Bar Council as a mark of his having ceased to practice and that such certificate shall lie in deposit with the Council, until the advocate makes a declaration that the circumstances mentioned in Rule 2 have ceased to exist and that he intends to resume his practice. 16. Ms. Megha Jani, the learned counsel appearing for the writ applicant has argued that the rule in question is manifestly arbitrary, unreasonable and violative of Articles 14, 19(1)(g) and 21 respectively of the Constitution of India. She would argue that the rule, on one hand, prohibits even an entry of a person who is engaged in any service, employment, trade, business or profession at the stage of enrollment, while making it permissible for an enrolled advocate to change his profession and also to get back to the profession as a lawyer thereafter. It is argued that the rule should be declared as violative of the above referred articles of the Constitution. 17. Ms. Jan....
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....llment) Rules, reads thus; "(10) In the event of the Rule 2 coming into force, the Advocate shall deposit his Enrolment Certificate with the Bar Council as a mark of his having ceased to practise and it shall lie in deposit with the Council until the Advocate makes a declaration that the circumstances mentioned in the Rule 2 have ceased to exist and that he intends to resume his practise. " 21. Rule 49 of the Bar Council of India Rules, reads thus; "49. An Advocate shall not be 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 such 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. Nothing in this rule shall apply to a Law Officer of the Central Government of a State or of any Public Corporation or body constituted by statute who is entitled to be enrolled under the rules of his State Bar Council made under Section 28(2)(d) read with Section 24(1)(e) of the Act despite his being a full time salaried employee. Law Officer f....
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....o any extent inconsistent with the provisions of the parent enactment and lastly (3) whether they infringe any of the fundamental rights or other restrictions or limitations imposed by the Constitution (Maharashtra State Board of Secondary and Higher Secondary Education Vs. P.B. Mukarsheth, AIR 1984 SC 1543). There is presumption in favour of the validity of the rule. 25. In Venkayya Vs. Pullayya reported in AIR 1942 Mad. 466, a Division Bench of the Madras High Court, after referring to a decision by the House of Lords in Blackwood Vs. London Chartered Bank of Australia (1874) 5 PC 92, at p.108 observed as under:- "As has been pointed out by the House of Lords in (1874) 5 PC 92, at pg. 108, the tests to apply in considering whether rules are within the powers of the rule-making authority under a statute are: (1) Whether the rules are reasonable and convenient for carrying the Act into full effect; (2) Whether the rules relate to matters arising under the provisions of the Act; (3) Whether they relate to matters not in the Act otherwise provided for and (4) Whether they are consistent with the provisions of the Act. The valid....
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.... that case, under Rule 7 of the impugned Rules, "a local student" was defined as a student who has passed SSC/new SSC examination and the qualifying examination from any of the High Schools or Colleges situated within the Ahmedabad Municipal limits. According to that Rule, it was only those students who had qualified from the educational institutions situated within the Municipal limits would be eligible to be treated as 'local students'. While the permanent resident students of Ahmedabad city who for fortuitous reasons, happen to acquire qualification from educational institutions situated just outside the Municipal limits, namely, AUDA, would not be eligible for being treated as the local students. The Supreme Court noticed that the object of the rule was to provide medical education to the students of Ahmedabad who had acquired the necessary qualification, their selection being based on merit. If that was the object, the Supreme Court observed whether the classification based only on the location of the educational institutions within or outside the Municipal area would be a reasonable classification. The Court held that the answer had to be in the negative. However, des....
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....4) SCC 596, 608 : 1996 SCC(Cri) 792 : 1996 AIR(SC) 2184, 2188) (SCC at 608 : AIR at p. 2188). Thus, following the above rule of interpretation and with a view to iron out the creases in the impugned rule whch offends Article 14, we interpret Rule 7 as follows "Local student means a student who has passed HSC (sic SSC)/New SSC Examination and the qualifying examination from any of the high schools or colleges situated within the Ahmedabad Municipal Corporation limits and includes a permanent resident student of the Ahmedabad Municipality who acquires the above qualifications from any of the high schools or colleges situated within the Ahmedabad Urban Development Area." 28. We now go back to the pivotal issue. What is the object behind Rules 1 and 2 of the State Bar Council (Enrollment) Rules and Rule 49 of the Bar Council of India Rules?. Why such a restriction is sought to be imposed?. Why the statute does not permit a person enrolled as an advocate with any particular Bar Council of the State from taking up any other vocation?. 29. According to the Black's Law Dictionary, a lawyer is "a person learned in the law; as an attorney, counsel or solicitor, a person licensed to....
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....ing the Rules 1 and 2 respectively of the State Bar Council in tune or in conformity with Rule 49 of the Bar Council of India Rules. Rule 49 specifically talks about "an advocate". It is suggestive of the fact that a person can be termed as an advocate only after he is lawfully enrolled on the Bar Council. This is suggestive of the fact that if a practicing advocate decides to take up any other job with any person, government, firm, corporation or concern, his duty is to intimate the Bar Council and after the necessary intimation he would cease to practice as an advocate. 32. It is too much to say that a person desirous to get himself enrolled as an Advocate with the State Bar Council should be asked at its inception to give up any other vocation, business or job and only, thereafter, he can be enrolled on the roll of the State Bar Council. We are dealing with a matter, in which, as single mother has come before us saying that no sooner she is enrolled as an Advocate after clearing the Bar Council Entrance Exam, then she would file a declaration on oath that she has given up the job which she has as on date. The lady is in a helpless situation. Today, if she gives up her job bei....