Gujarat HC Stays Interim Order Directing State Bar Council To Issue Provisional Practice Certificate To 2 Law Graduates From Unrecognized College

The Gujarat High Court on Thursday (February 27) stayed the interim order passed by the single judge directing the Bar Council of Gujarat to issue provisional Certificate of Practice to two law graduates from an unrecognized college, so as to enable them to apply for Civil Judges recruitment process. 

The high court noted that the single judge in his order did not discuss Rule 7(2)(b) of the Gujarat State Judicial Service Rules, 2005, which requires candidates to be practicing advocates on the last date for submission of application, underscoring that the single judge was required to delve into the Rules. The court further said that by granting interim order the Single Judge has "allowed" the candidates' writ petition "without examining the Rules".

A division bench of Justice A.S. Supehia and Justice Gita Gopi observed:

"The learned Single Judge, while granting the interim relief, has not discussed about the Rules, as mentioned hereinabove and the effect of such Rules. The learned Single Judge has premised the interim order only on the basis of the direction issued by the learned Single Judge in other writ petitions, which are filed by the candidates challenging the actions of the Bar Council of India pertaining to the colleges from which they have obtained LL.B. Degree. The Bar Council of India has refused to approve the affiliation of the colleges from where the respondents – original petitioners have done their three years LL.B. course. The legality of their LL.B. course is yet to be examined. In such circumstances, the respondents – original petitioners cannot be allowed to participate in the recruitment process of Civil Judges. Their substratum of having done a valid and legal LL.B. course is unstable, and unless it is validated and declared legal, they cannot claim themselves to be legally practicing as per the requirement of Rule 7(2)(b) of the Gujarat State Judicial Service Rule, 2005. The sanctity of requirement of statutory Rule cannot be sullied by the process which is yet to be declared lawful. The obligation of statutory Rule has to be absolutely satisfied and is not reliant on future happenings”. 

“…we are inclined to stay the interim order passed by the learned Single Judge. The interim order does not deal with the provisions, as mentioned hereinabove, more particularly, Rule 7(2)(b) of the Gujarat State Judicial Service Rules, 2005 and satisfy such requirements. The learned Single Judge was supposed to delve into such Rules though, they are referred in the impugned order. We do not find any findings dealing with the Rules of the Gujarat State Judicial Service Rules, 2005 and also the provisions of the advertisement, mentioned hereinabove.”

Background

The bench was hearing an appeal challenging a February 24 interim order of the Single Jude where the State Bar Council was directed to issue Provisional Certificate of Practice to the two persons allowing them to participate in the recruitment process for Civil Judge. The interim order however clarified that no appointment will be made until the court decided on the recognition of the college from where the two persons had graduated from. 

Before the division bench senior counsel appearing for the High Court of Gujarat (appellant) contended that as per Clause (2) of the advertisement and Rule 7(2)(b) of the Gujarat State Judicial Services Rules, 2005, candidates must be practicing as advocates in civil and/or criminal courts on the last date for submission of application; or must have worked in Courts or other allied departments for at least five years.

He further argued that mere issuance of Enrolment Intimation Letters and permission to practice provisionally by the Bar Council of Gujarat would not prevail over the statutory requirements. 

He further relied on Supreme Court's decision in Abhimeet Sinha & Ors. High Court of Judicature at Patna (2024) wherein the statutory rules override the provisional permission and highlighted that the Law College where the petitioner studied lacks approval of Bar Council of India that violates legal education rules. He then contended that filing petition at the last minute to seek participation in the recruitment disrupts the administration and urged the court to stay the interim order.

The counsel appearing for Bar Council of Gujarat (BCG) submitted that BCG cannot issue a Certificate of Practice and only Bar Council of India can do so as per All India Bar Examination Rules, 2010. He then contended that the BCG issued the enrolment intimation letter and provisional practice certificate on 26.02.2025 as per the direction of the Single Judge. He pointed out that BCI was not made a party in the other writ petitions filed by the similar candidates and the issue regarding the recognition of college is still pending. He further submitted that there are conditions in the enrolment letter that restricts petitioner from appearing in court or to wear advocate gowns and band until formally admitted to practice and the provisional certificate is valid up to 24.02.2027 or until the candidate passes All India Bar Examination (AIBE).

Findings

The bench noted that the LLB Colleges from where the candidates had graduated were scrutinized by BCI wherein, the Standing Committee found violation of legal education rules and did not grant approval of affiliation to three year L.L.B. course.

Examining the Rule 7(2)(b) of the Gujarat State Judicial Service Rules, 2005, the court observed, "Unquestionably, the present respondents – original petitioners on the date of receipt of the applications are not actually practicing as advocates, either in Courts of Civil and / or Criminal Jurisdiction". It said that as on today the two candidates were unable to show  in which Court they are actually practicing. 

It further said that their period of practice or whether they are practicing on Civil Side or Criminal Side is also unknown. Furthermore, the concerned authorities in Clause 6(XII) of the advertisement did not issue the certificate of practice.

It noted that neither the candidates had challenged the rules nor did their petition had any legal basis on which the candidates could claim to participate in the recruitment process.

It said, “None of the petitioners are able to point out that under which provisions of law, they can be allowed to appear in the recruitment process, even though they are not eligible as per the requirement of Rule 7(2)(b) of the Gujarat State Judicial Service Rule, 2005 nor they have able to satisfy that they are holding the Provisional Certificate issued by the authorities, as mentioned in Clause 6(XII).”

Issuing notice on the plea the court stayed the interim order of February 24. It however clarified that the observations made in its order are only confined with regard to the interim order permitting the original petitioners to appear in the recruitment process.

Case Title: High Court of Gujarat vs Neha Vivek Dwivedi & Ors.

Click Here To Read/Download Order