Advocate Who Voluntarily Suspended Legal Practice For Govt Employment No Longer A Member Of The Bar: Kerala High Court

The Kerala High Court recently ruled that a serving Government employee, who had earlier secured enrollment as an Advocate and had later suspended his legal practice for taking up the above Government employment, cannot be treated as a "member of the Bar" for the purpose of selection and appointment as Assistant Public Prosecutor Grade II.

A Division Bench of Justice Alexander Thomas and Justice Viju Abraham observed that this was so since as per the Advocates Act and Bar Council of India Rules, a person who was initially enrolled as an Advocate and later voluntarily suspended from legal practice is not entitled to practise as an Advocate.

So the inevitable consequence of the statutory provisions is that the said person, who has initially secured enrollment with the State Bar Council and who later secured voluntary suspension of legal practice, consequent to taking up of employment, including public employment, will cease to have the right to be an Advocate or to practise as an Advocate, so long as the voluntary suspension is in force.

The Court also laid down that such an eligibility condition of being a member of the Bar should be possessed by the candidate not only on the last date of submission of the application to the Public Service Commission (PSC) but also thereafter, even on the date of advice by the PSC and the date of appointment order issued by the appointing authority, etc.

The petitioner had secured a law degree and thereafter got herself enrolled as an advocate before the Bar Council of Kerala in 2007. She practised as an advocate till she got appointed as Lower Division Typist (LDT) in the Excise Department of the State and joined government service in 2012.

Later, she produced an application before the Bar Council and got her legal practice suspended as per the Advocates Act and the Bar Council of India Rules and her voluntary suspension from legal practice was rendered on 10.10.2012.

Meanwhile, PSC issued a selection notification in 2017, inviting applications from eligible and qualified candidates for appointment as Assistant Public Prosecutor Gr.II in the State. One of the qualifications prescribed to hold the post mandated the applicant to be a member of the Bar with not less than three years of active practice in Criminal Courts.

The petitioner contended that since she had already enrolled as an Advocate, the mere fact that she had later suspended her legal practice to take up Government employment will not result in a scenario that she cannot be treated as a member of the Bar.

The respondents argued that the applicant cannot be treated as a member of the Bar after her voluntary suspension of legal practice in 2012 and at any rate, she cannot be treated as a member of the Bar in 2017.

Since the expression "member of the Bar" is not explicitly defined in the Advocates Act or in the rules framed thereunder, the Court conducted an elaborate study on the available law to come to a conclusion. 

The Court noted that the cumulative and combined effect of Rule 49 and Rule 5 is that, upon voluntarily suspending the practice, the person concerned will have to surrender the original certificate of enrollment to the State Bar Council. Similraly, a person who secures suspension of legal practice will cease to have the right to practise as an Advocate in terms of Sections30 and 33 of the Advocates Act as long as the said person is in employment.

Therefore, the Bench had no hesitation to hold that to describe a person as being a member of the Bar, he/she should be a member of the legal profession, who earns a livelihood through the profession of legal practice carried on the courts, Tribunals, etc.

"So long as a person like the applicant does not have the legal right to practise as an Advocate in terms of Secs.30 and 33 of the Act, in view of the abovesaid aspects and the consequences flowing from the Act and the Rules, it cannot be said that such a person should be a member of the Bar."

Since the applicant had taken up full-time Government employment, consequent to the voluntary suspension of legal practice, she ceases to have the legal right to practise as an Advocate and thus ceases to be an Advocate as long as the voluntary suspension is in force.

Yet another aspect pointed out by the Court was that the special rules require that the candidate should be a member of the Bar and must have had an active practice of not less than 3 years on the first day of the year in which the applications are invited. Therefore, it was clear that the applicant must be having active practice not only on the last date of submission of the application but also thereafter and up to his/her date of advice and regular appointment.

As held by the Patna High Court in Amar Sinha v. Bar Council [2017 KHC 2225], when a person having licensed to practise law under the Advocates Act, abandons his profession or is having no bonafide intent to continue in the profession, there is no reason to treat him as a member of the profession merely on the strength of his enrollment.

As such, the petition was dismissed.

Advocate N. Ashok Kumar appeared for the petitioner while the respondents were represented by Advocates Nirmal V. Nair, M. Aneesh and Rahul S. Nath. Senior Government Pleader Saigi Jacob Palatty and Standing Counsel P.C Sasidharan for the Kerala Public Service Commission also made appearance in the matter. 

Case Title: Saumya M.S. v. State of Kerala & Ors 

Citation: 2022 LiveLaw (Ker) 162

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