Pursuing Master’s Course In Law Doesn’t Constitute A Break In Practice, Suspension Of Enrolment Not Required: Delhi High Court

The Delhi High Court has ruled that the eligibility criterion of seven years of continuous practise as an advocate to be appointed as a District Judge, as set out in Rule 9(2) of the Delhi Higher Judicial Services (DHJS) Rules, 1970 or Article 233(2) of the Constitution of India, does not require any inquiry into the actual area of practise as an advocate.

"If a person is enrolled as an advocate for a period of seven years prior to the date of the application, he would satisfy the eligibility criteria unless it is established that he was not entitled for being so enrolled as an advocate; had suspended his practice either voluntarily or otherwise; or had accepted an engagement or vocation, which was impermissible as an advocate," said the court.

The bench said the profession of law has expanded manifold and it is not confined to acting or pleading before a court of law.

"The profession of law has many facets, which include drafting of submissions, drafting of regulatory filings, representation before various tribunals or authorities, assistance in regulatory compliance, amongst others."

The court further said that Rule 9(2) of the DHJS Rules does not contemplate the condition of active practise as an advocate, in addition to the eligibility criteria stipulated under Article 233(2) of the Constitution. It added that there is no difference between a person who is an advocate, and a person who has practised as an advocate.

The division bench of Justice Vibhu Bakhru and Justice Amit Mahajan was dealing with a writ petition challenging the selection of a candidate in the Delhi Higher Judiciary Services (DHJS) on the ground that the time period spent by him in pursuing a full time Master’s program in law cannot be considered as a period during which he was in active practise as an advocate.

Referring to the Resolution No.160/2009 of the Bar Council of India (BCI), as per which the practising advocates can join an LL.M. course as a regular student without suspending the practise, the court said that since the candidate’s practice as an advocate was not suspended during the said period, he did not fail the eligibility criteria for being appointed in the DHJS.

In the writ petition filed before the court, the petitioner Karan Antil had sought directions for his appointment in the DHJS by challenging the inclusion of respondent no. 5 in the list of candidates who had been selected for appointment in the DHJS.

Antil, who had appeared for the DHJS Examination - 2022 was placed at serial no.35 in the order of merit. He pleaded that the 5th respondent was not eligible to appear for the DHJSE-22 since he failed to satisfy the eligibility criterion set out in Rule 9(2) of the DHJS Rules, which requires the candidate to “have been continuously practicing as an Advocate for not less than seven years as on the last date of receipt of the application.”

Antil contended that since the respondent no.5 had pursued the Master of Law Program at the University College London (UCL) from 23.09.2015 to 06.06.2016, he did not meet the criteria. The period spent in pursuing a full time Master’s program in law cannot be considered as a period during which respondent no.5 was in active practise as an advocate, he pleaded. During the said period, since respondent no.5 was not engaged in acting or pleading in a court of law as an advocate, he could not be considered to be in practise, Antil alleged.

He further argued that whether a person was in practise is dependent on the functions performed by the person, and that pursuing a Master’s course in law could not be considered as practice.

It was further contended that that there was a difference in the language of Article 233(2) of the Constitution and Rule 9 of the DHJS Rules. 

"Whereas Article 233(2) of the Constitution of India requires that a person would be eligible to be appointed as the District Judge if he has been for not less than seven years an advocate or a pleader. However, Rule 9 of the DHJS Rules requires the candidate to be practicing as an advocate for not less than seven years as on the last date of receipt of the application," it was argued.

The court observed that the enrolment of a person as an advocate and grant of certificate is synonymous to him being in practise of law. An advocate, who is not practicing the profession of law, is a misnomer, said the court

"The enrolment of a person as an advocate and grant of certificate is synonymous to him being in practice of law. An advocate, who is not practicing the profession of law, is a misnomer."

Dismissing the contentions made by the petitioner, the court remarked that there was no material difference between the eligibility criteria set out for an advocate under Article 233(2) of the Constitution and Rule 9(2) of the DHJS Rules.

“In terms of Article 233(2) of the Constitution of India, any person who has been an advocate for not less than seven years, is eligible to be appointed as a District Judge. It is implicit that the term ‘advocate’ would mean a person who is in practise as an advocate. We are not persuaded to accept that there is a difference between a person who is an advocate, and a person who has practised as an advocate,” said the court.

The bench further referred to the Resolution No.160/2009 of the Bar Council of India, as per which the practising advocates can join an LL.M. course as a regular student without suspending the practise.

Thus, the court concluded that the respondent no.5’s practise as an advocate was not suspended during the period when he was pursuing the Master of Law Program. By virtue of Resolution No. 160/2009 passed by the BCI, he was not required to suspend his enrolment as an advocate on account of pursuing the said full-time course, the bench said.

"In view of the above, the petitioner’s prayer that the DHC be directed to appoint him in the DHJS must also fail. It is not necessary for this Court to consider the petitioner’s challenge to the appointment of respondent nos. 3 and 4 to the DHJS," said the court.

Case Title: Karan Antil vs. High Court of Delhi & Ors.

Citation: 2023 LiveLaw (Del) 300

Counsel for the Petitioner: Mr. Akhil Sibal, Sr. Advocate with Mr. Praveen Kumar, Advocate

Counsel for the Respondents: Dr. Amit George, Mr. Piyo Harold Jainmon, Mr. Amil Acharya, Mr. Raya Durgam Bharat and Mr. Arkaneil Bhaumik, Advocates for R1. Mr. Dayan Krishnan, Sr. Advocate for R-3. Mr. Sacchin Puri, Sr. Advocate, Mr. Praveen Kumar Sharma, Ms. Nidhi Rana, Mr. Praveen Kumar, Mr. Mitesh Tiwari, Mr. Mukesh Kumar Sharma and Mr. Manish Bhardwaj, Advocates for R-4. Mr. Devansh A Mahta, Mr. Mrigank Prabhakar and Ms. Sakshi Banga, Advocates for R-5. Ms. Rinku Parewa, Mr. Nikhil Jayant and Mr. Nitesh Kumar, Advocates for R-6. Mr. Akshay Makhija, Sr. Advocate and Mr. Sahil Khurana, Advocate for R8.

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