Gujarat HC Allows Employed Woman To Sit For AIBE; Directs Bar Council Not Insist On Resignation From Her Current Employment [Read Order]

The Bench of Chief Justice Vikram Nath and Justice J. B. Pardiwala also asked the Bar Council of Gujarat to accept her application (for AIBE) and directed the Council to not ask the writ applicant to resign from her current employment.

Background of the Case

As per the Bar Council of India Rules, no advocate enrolled under Section 24 of the Advocates Act, 1961 is entitled to practice under Chapter IV of the Advocates Act unless such Advocate successfully passes the All India Bar Examination (AIBE) conducted by the Bar Council of India

The Bar Council of Gujarat, has framed the Bar Council of Gujarat (Enrollment Rules) under Section 28(2)(d) read with Section 24(1)(e) of the Advocates Act, 1961 (hereinafter referred to as "the Enrollment 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.

The Rule 2 of the Enrolment Rules requires every person applying to be admitted as an advocate, to make a declaration in his application that he/she is not in full or part-time service or employment and that he/she 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.

The Case of the Applicant

In 2016, the writ applicant took up studies of law after a gap of 20 years since her graduation in Commerce and obtained degree of Bachelor of Laws during the period between 2016 and 2019.

After getting a degree of Bachelor of Laws, the Writ Applicant applied for enrolment as an Advocate with a view to clear the Bar Council Examination and getting enrolment certificate.

The Writ Applicant duly filled in the application form and also paid fees of Rs.16,600/- as required. The Writ Applicant also duly declared that she is in employment.

The Bar Council of Gujarat, however, did not accept the form of the writ applicant.

The writ applicant was told that the application was not accepted as the writ applicant had declared that she was in employment and that the form of only that person, who makes a declaration that she is not employed either in full or part-time service or employment and is not engaged in any trade, business or the profession can be accepted.

The writ applicant also explained that unless she clears the exam and has the enrolment certificate, which is essential to continue in the field of advocacy, it is not possible for the writ applicant to give up her current employment and lose regular income.

The requests, however, were not accepted. The writ applicant declared that she would not be engaged in two professions or services or employments simultaneously.

The writ applicant further submitted that the aforesaid rule is manifestly arbitrary, unreasonable, violative of Article 14, 19(1)(g) and 21 of the Constitution of India. Hence, this petition

Prayers of the Writ Applicant

By this writ application under Article 226 of the Constitution of India, the writ applicant prayed for the following reliefs before the Court:

A. To issue an appropriate writ, order or direction and be pleased to quash and set aside Rule 1 and Rule 2 of the Bar Council of Gujarat (Enrolment) Rules to the extent they prohibit the 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, 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 enrolment 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 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."

Court's Directions

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, the Court passed the following interim order.

1. The writ applicant shall submit an application for enrolment on or before 09.10.2020.

2. 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 permission to the writ applicant to continue with both, i.e., her employment and practice.

3. The Bar Council of Gujarat shall accept such application and shall not require the writ applicant to resign from her current employment.

4. The Bar Council of Gujarat shall issue Provisional Enrolment Certificate to the writ applicant on or before 15.10.2020, considering that the online registration for the next All India Bar Examination closes on 17.10.2020.

5. The respondents shall permit the writ applicant to appear in the All India Bar Examination, as may be held.

6. The writ applicant undertakes that she will not practice as an advocate on the basis of the Provisional Enrolment Certificate issued to her.

7. The writ applicant shall further undertake that if after the issuance of enrolment certificate and after passing of the All India Bar Exam, if she continues to be in full or part-time service or employment or is engaged in any trade, business or profession, she shall deposit her enrolment certificate with the Bar Council and shall not practice as an Advocate.