TaxTMI 
TaxTMI 
TaxTMI 
2017 (6) TMI 1407
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.... interview of Gujarat Industrial Development Corporation (hereinafter referred to as 'GIDC') as Legal Consultant i.e. the Legal Expert on contractual basis by letter dated 19.03.2012. It is stated that on 21.08.2012, she received information from respondent Nos. 2 and 3 that her enrollment form for certificate of practice is put on hold as she is rendering her services to GIDC which is in violation of Rule 49 of Bar Council of India Rules (hereinafter referred to as 'the Rules' for short). 2.2. It is further the case of the petitioner that contractual agreement of her services with GIDC cannot be said to be an employment. She is getting remuneration and not salary and therefore there is no employer - employee relationship between the GIDC and the petitioner. It is stated that respondent No. 1 in its meeting dated 12.10.2012 considered the representation of the petitioner and informed the respondent no.2 that its opinion was sought and final decision would be taken and conveyed to the petitioner. It is further stated that even after the reference was made by respondent No.2 to respondent No.1, no decision was taken by respondent No.1 - Bar Counsel of India. Therefor....
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....pondent Nos. 2 and 3 challenged the said order by preferring Letters Patent Appeal No.1296 of 2016 before this Court. This Court, by an order dated 22.12.2016, allowed the said appeal and thereby set aside the interim order passed by the learned Single Judge. 2.5. Thereafter, the learned Single Judge heard the petition finally and by an impugned judgment dated 16.06.2017, learned Single Judge dismissed the petition. Hence the petitioner has preferred the present appeal. 3. At this stage, it is relevant to note that though the petition was filed for the reliefs as reproduced herein above, in this appeal, the petitioner has prayed for quashing and setting aside the order passed by the learned Single Judge with following additional relief/s: "(C) YOUR LORDSHIPS may further be pleased to declare that the applicant who is rendering her service in legal department as legal expert of other allied departments are to be considered as an eligible candidate for the post of Civil Judge; (D) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, directions by directing the respondents, state of Gujarat, High Court of G....
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....be in employment of GIDC she may be permitted to participate in the recruitment process of Civil Judges as the employees working in the Courts or other allied departments are permitted to participate in the said recruitment process. 7. Moreover, petitioner also relied on Clause 11(7) of the advertisement dated 16.05.2017, which provides that: "(7) Employees working in the following Departments are considered as 'Employees of Allied Departments': (i) High Court of Gujarat or any Court, subordinate to it. (ii) Office of the Government Pleader, High Court of Gujarat. (iii) Office of the Government Pleader, City Civil Court, Ahmedabad. (iv) Office of Legal Section of the Legal Department, Sachivalaya, Government of Gujarat, Gandhinagar." 7.1. After referring to the aforesaid clause, it is submitted that the employees working in other departments including GIDC be permitted to participate in the said recruitment process. 8. Petitioner, thereafter, submitted that the Legal Assistants and Law Clerks working in the establishment of High Court on contractual basis are also permitted to participate in the said recruitment process. However, the petitioner who is work....
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...., which will be forfeited by the GIDC in case of premature termination of contract by the petitioner. It is also clear from the record that petitioner is getting fixed amount of Rs. 25,000/- per month. It is not in dispute that the petitioner has to be in the office from 11:00 a.m. to 5:00 p.m. Which are standard hours of work and therefore the same can be considered as full time employment. If we consider the dictionary meaning of 'salary', it is nothing but fixed regular payment made by an employer to an employee in return of work. 12. At this stage, we would like to refer to Rule 49 of the Rules, which reads as under: "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 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. That as Supreme Court has struck down the appearance by Law Officers in Court even on behalf of their employers the Judgement will operate in the case of all Law Officers. Even if they were all....
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....ion or concern so long as he continues to practice, 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. It was submitted that earlier in Rule 49 an exception was carved out that a 'Law Officer' of the Central Government or of a State or of a body corporate who is entitled to be enrolled under the rules of State Bar Council shall not be affected by the main provision of Rule 49 despite his being a full time salaried employee but by Resolution dated 22.6.2001 which was published in the Gazette on 13.10.2001, the Bar Council of India has deleted the said provision and hence on and from that date a full time salaried employee, be he Public Prosecutor or Government Pleader, cannot be an advocate under the 1961 Act. 98. Admittedly, by the above resolution of the Bar Council of India, the second and third para 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....
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....idates, who have passed the Degree in Law from the academic year 2009-2010 and onwards, must have also passed the All India Bar Examination, in order to be considered as eligible for being termed as a Practicing Advocate. OR - must be working in the Courts or other Allied Departments on the last date fixed for receipt of applications. [See instructions at Item No.11(7)] Note: Candidates working in the Courts or other Allied Departments, should be holding LL.B Degree of 03 Years' Course or 05 Years' Course from the recognised University." 18. Moreover, for the sake of repetition, Clause 11(7) of the advertisement provides that: "(7) Employees working in the following Departments are considered as 'Employees of Allied Departments': (i) High Court of Gujarat or any Court, subordinate to it. (iii) Office of the Government Pleader, High Court of Gujarat. (iii) Office of the Government Pleader, City Civil Court, Ahmedabad. (iv) Office of Legal Section of the Legal Department, Sachivalaya, Government of Gujarat, Gandhinagar." 19. It is not in dispute that the petitioner is not an employee of an allied department as provided in Clause 11(7) of the....