Person Not Appearing & Pleading Before Courts Not An "Advocate", Mere Enrollment With Bar Council Is Of No Consequence: Gujarat High Court

"The term "an advocate" has been interpreted as one where mere enrollment at the Bar Council would not by itself entitle the Petitioners to claim to have the requisite qualification as the as the same has been interpreted by the Supreme Court in the case of Deepak Aggarwal (supra) as being actually pleading and appearing before the Courts which the Petitioners have not..." a single bench of Justice Biren Vaishnav said.

The observation was made while hearing two pleas whereby the Petitioners, aspiring for the post of Joint Charity Commissioner in the General State Service, were declared ineligible due to lack of requisite experience as Advocate as per Recruitment Rules. The Rules prescribed 10 years experience as the minimum requirement.

The primary contention of the Petitioners was that the Rules required the candidate should be enrolled under the Advocates Act 1961 for not less than 10 years and the Petitioners were compliant with the same. Merely because they were employed did not imply that they would lose their enrollment. The enrollment continues even if he is employed as his name is not removed from the rolls but only kept under suspension. Reference was made to R.Sreekanth and Others versus Kerala Public Service Commission, WP No. 3185 of 2009 to bolster these contentions.

Per contra, the GPSC relied extensively on the Deepak Aggarwal versus Keshav Kaushik and Others 2013 (5) SCC 277 to argue that an advocate essentially means an individual who is actually practising before the Courts. If they are employed and not acting or pleading as per this definition, then they become a mere employee and not an 'Advocate' as expressed in the Advocates Act.

Justice Vaishnav noted that in the Sreekanth judgement, the Kerala High Court had held that what is suspended during the employment of the Advocate in service is not enrollment because suspension of the certificate of practice does not imply that the enrollment on the rolls of the Bar Council ceases.

However, in the Deepak Aggarwal case, the meaning of 'Advocate' or 'Pleader' was adjudicated by the Supreme Court. The Court therein had relied on Sushma Suri v Govt.(NCT of Delhi), 1999 (1) SCC 330 to hold that if a person being enrolled as an Advocate ceases to practise and takes up employment then such a person can 'by no stretch of imagination be termed as an Advocate.'

Referring to Rule 49 of the Bar Council of India Rules, the Justice Vaishnav opined "if an Advocate by virtue of taking up employment does not plead or act as a pleader then as per the terms of his engagement that he becomes a mere employee and therefore the Bar Council has understood the expression "advocate" as one who is actually practicing before courts."

In Deepak Aggarwal as well, the Apex Court had perused Sec 35(4) of the Advocates Act to clarify that where an Advocate is suspended from practice, he is debarred from practising before any court. Therefore, if the object of surrendering certificate of practise is considered, it implies that a person ceases to be an advocate.

Thus, the Court concluded:

"The continuance of his name on the rolls of the Bar Council is of no consequence as far as his right to practice is considered and such a person cannot designate himself as an advocate."

Keeping in view these precedents, the High Court dismissed the petitions and declined to find fault with the GPSC order.

Case No.: C/SCA/1672/2022

Case Title: PRUTHVIRAJSINH BHAGIRATHSINH JADEJA v/s STATE OF GUJARAT & 2 other(s)

Citation: 2022 LiveLaw (Guj) 336

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