2017 (6) TMI 1407 - HC - Indian Laws

Holding on enrollment form for certificate of practice as an advocate - rendering services to GIDC which is in violation of Rule 49 of Bar Council of India Rules - Petitioner mainly contended that her services in GIDC cannot be termed as employment - HELD THAT - The petitioner agreed to visit/attend the office of the GIDC regularly as per the standard office hours in force. Condition No.7 provides that the petitioner agreed to deposit an amount equal to one month s remuneration or give appropriate security/bank guarantee for the same which will be forfeited by the GIDC in case of premature termination of contract by the petitioner. It is also clear from the record that petitioner is getting fixed amount of Rs. 25, 000/- per month. It is not in dispute that the petitioner has to be in the office from 11 00 a.m. to 5 00 p.m. Which are standard hours of work and therefore the same can be considered as full time employment. If we consider the dictionary meaning of salary it is nothing but fixed regular payment made by an employer to an employee in return of work. From the record it is further revealed that the respondent No.2 Bar Council of Gujarat sought an opinion of respondent No.1 Bar Council of India. In fact the respondent No.1 appointed a committed headed by retired Judge of High Court and the said committee after considering the facts of the case observed that application of the petitioner for enrollment as an advocate is required to be rejected. The said view was taken on the basis of Rule 49 of the Rules. Thus when the expert committee has considered the case of the petitioner on the basis of which the respondent Nos. 1 and 2 have taken the decision of not giving enrollment number to the petitioner it is found that no error is committed by the respondents while denying enrollment number and certificate of practice to the petitioner. The learned Single Judge has not committed any error while dismissing the petition and therefore no interference is required in the said order. It is not in dispute that the petitioner is not an employee of an allied department as provided in Clause 11(7) of the advertisement and petitioner is working with the GIDC and therefore she is not entitled to participate in the recruitment process for the post of Civil Judges as per the advertisement dated 16.05.2017. Further petitioner has not challenged the Rules. Thus in absence of any challenge to the Rules it is not open for the petitioner to seek a prayer that she may be permitted to participate in the recruitment process. The appellant petitioner is also not entitled to the additional relief/s as prayed for in the present appeal - Accordingly the appeal is dismissed.

Summary

Issues Involved:

1. Whether the petitioner's engagement with Gujarat Industrial Development Corporation (GIDC) constitutes employment under Rule 49 of the Bar Council of India Rules.
2. Whether the petitioner is eligible for enrollment as an advocate while being engaged with GIDC.
3. Whether the petitioner can participate in the recruitment process for the post of Civil Judge as per the advertisement issued by the High Court of Gujarat.

Issue-wise Detailed Analysis:

1. Employment under Rule 49 of the Bar Council of India Rules:

The primary issue revolves around whether the petitioner's role as a Legal Consultant with GIDC constitutes "employment" under Rule 49 of the Bar Council of India Rules, which prohibits advocates from being full-time salaried employees while practicing law. The petitioner argued that her role was contractual, receiving remuneration rather than a salary, and thus did not establish an employer-employee relationship. However, the court examined the terms of the contract, noting that the petitioner was required to adhere to standard office hours and received a fixed monthly payment, which aligns with the characteristics of full-time employment. The court concluded that the petitioner's engagement with GIDC fell within the ambit of full-time employment as defined by Rule 49, thus barring her from practicing law concurrently.

2. Eligibility for Enrollment as an Advocate:

The petitioner contended that despite her contractual engagement, she should be eligible for enrollment as an advocate. The Bar Council of Gujarat, upon seeking an opinion from the Bar Council of India, formed a committee that recommended rejecting the petitioner's application for enrollment based on Rule 49. The court upheld this decision, noting that the expert committee's assessment was based on the established rules, and no error was found in denying the petitioner an enrollment number and certificate of practice. The court emphasized that the petitioner's role with GIDC constituted full-time employment, disqualifying her from being enrolled as an advocate under the current rules.

3. Participation in the Recruitment Process for Civil Judge:

The petitioner sought to participate in the recruitment process for Civil Judges as advertised by the High Court of Gujarat. The advertisement specified that candidates must either be practicing advocates or employees of allied departments. The petitioner argued for inclusion based on her legal qualifications and contractual role. However, the court noted that the petitioner did not fall under the category of employees from allied departments as defined in the advertisement, which included the High Court, government pleader offices, and legal sections of the government. Without challenging the rules or the advertisement's criteria, the petitioner could not claim eligibility for the recruitment process. Consequently, the court denied the petitioner's request to participate in the recruitment for Civil Judges, affirming the advertisement's stipulations.

In conclusion, the court dismissed the appeal, upholding the learned Single Judge's decision to deny the petitioner's enrollment as an advocate and her participation in the Civil Judge recruitment process. The court found no grounds to interfere with the established interpretations of employment under Rule 49 or the eligibility criteria outlined in the recruitment advertisement.