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TMI Blog2020 (11) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... ualified to be admitted as an advocate, but is either in full or part time service or employment or is engaged in any trade, business or profession, as an advocate: Alternatively the Hon'ble Court be pleased to read down Rule 1 and Rule 2 and declare that a person who is otherwise qualified to be admitted as an advocate, but is either in full or part time service or employment or is engaged in any trade, business or profession, shall be admitted as an advocate, however the enrollment certificate of such a person shall be withheld with the Bar Council and shall lie in deposit with the Council, until the advocate makes a declaration that the circumstances mentioned in Rule 2 have ceased to exist and that he continues to start his practice: (B) that pending the hearing and final disposal of this petition, the Hon'ble Court be pleased to direct the Bar Council of Gujarat to accept application form of the Applicant and permit the Applicant to take up the Bar Council Examination." 2. We need not state the facts of this litigation in details as those have been stated in the order passed by this Court dated 06.10.2020. We quote the order as under; "2. The gist of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as an advocate but is either in full or part time service or employment or is engaged in any trade, business or profession is not to be admitted as an advocate. Rule 2 of the Enrollment Rules requires every person applying to be admitted as an advocate, to make a declaration in his application that he is not in full or part time service or employment and that he is not engaged in any trade, business or profession contrary to the rules of State Bar Council and of the Bar Council of India made under the Act. In case, he is, he has to disclose full particulars of such service, employment or engagement. Rule 10 provides that in the event of Rule 2 coming into force, the advocate has to deposit his enrollment certificate with the Bar Council as a mark of his having ceased to practice and that such certificate shall lie in deposit with the Council, until the advocate makes a declaration that the circumstances mentioned in Rule 2 have ceased to exist and that he intends to resume his practice. 2016 The writ applicant took up studies of law after a gap of 20 years since her graduation in Commerce and obtained degree of Bachelor of Laws during the period between 2016 and 2019. 2018 The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es concerned and in the peculiar facts and circumstances of the case and also with a view to protect the interest of all concerned, we pass the following interim order. (i) The writ applicant shall submit an application for enrollment on or before 09.10.2020, the copy of which is at Annexure-D to the writ application. (ii) The interim order is passed only for the purpose of allowing the writ applicant to appear in the All India Bar Examination and this order shall not be treated as a permission to the writ applicant to continue with both, i.e, her employment and practice. (iii) Since fees of Rs. 16,600/- is already lying deposited with the Bar Council of Gujarat, the payment of further fees shall not be insisted upon. In case the current rules require deposit of fees higher than Rs. 16,600/-, the writ applicant undertakes to pay such fees promptly. (iv) The Bar Council of Gujarat shall accept such application and shall not require the writ applicant to resign from her current employment. (v) The Bar Council of Gujarat shall issue Provisional Enrollment Certificate to the writ applicant on or before 15.10.2020, considering that the online registration for the next All Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and well settled principles of law, of this Hon'ble Court and the Apex Court. The relevant judgments passed by this Hon'ble Court and Hon'ble Supreme Court are already annexed at Annexure-R2 (pg. 87 to 130) in the affidavit-in-reply filed on behalf of applicant-Bar Council of India in Special Civil Application No.15123 of 2019. The applicant therefore prays this Hon'ble Court to review/recall the order dated 6.10.2020 passed in captioned petition and the mention of consent as recorded in Para-4 of the order be removed. 6. The applicant humbly submits that the order dated 6.10.2020, would run contrary to the rules framed by the Bar Council of India, Bar Council of Gujarat and the settled law as per the judgments of this Hon'ble Court and the Hon'ble Apex Court. The applicant therefore prays this Hon'ble Court to recall the order dated 6.10.2020 passed in captioned petition. 7. The applicant humbly prays this Hon'ble Court to permit the applicant to rely on the contents of the affidavit in reply filed by the applicant in the captioned petition at the time of hearing of the present applicant, and the same may be considered as a part and parcel of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued to the Respondents to issue an Enrollment Number which is issued to all other applicants and which is compatible with the Online Registration system hence this application." 6. Thus, the Bar Council of Gujarat, by its communication dated 14.10.2020 addressed to the writ applicant, stated as under:- "To Ms. Twinkle Rahul Mangaonkar A-14, Shaligram 3, Vishal Tower Road, Prahladnagar, Ahmedabad-380051. Madam, I here to inform you that as per the oral order dated 06.10.2020 passed by the Hon'ble High Court of Gujarat in Special Civil Application No.15123 of 2019, the Bar Council of Gujarat office had received your enrollment application form on 09.10.2020, without insisting fees of Rs. 16,000/- as the same was deposited by you earlier. I have further to inform you that your enrollment application was placed before the Enrollment Committee of the Bar Council of Gujarat in its meeting dated 13.10.2020 as per the aforesaid oral order dated 6.10.2020 with regard to issue Provisional Enrollment to you. The Enrollment Committee considered that the Hon'ble High Court has passed order only for the purpose of allowing you to appear in the All India Bar Examinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ahmedabad." 8. The Bar Council of Gujarat acted very smart so as to see that the order passed by this Court dated 06.10.2020 is diluted or not given effect too. The Bar Council of Gujarat issued the provisional enrollment certificate to the writ applicant on the evening of 14.10.2020. However, much to the dismay of the writ applicant, she was not able to get herself registered for the All India Bar Examination as the Enrollment Number mentioned in the certificate is not being accepted by the On-line Registration System. The Enrollment Number ordinarily issued by the Bar Council is like G/123-2020 or G/1234-2020, i.e,. consisting of numeral except for the 'G'. The Bar Council of Gujarat issued the Enrollment Number as G/Provisional-I/2020, which has not been accepted by the On-line Registration System. 9. The Bar Council of India also seems to be putting up a defiant stance by saying that as the writ applicant is serving in a private office, she is not entitled to be enrolled as an Advocate. The argument canvassed on behalf of the Bar Council of India is that if the writ applicant is permitted to be enrolled as an Advocate, the same may open flood gates for the others. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntends to resume his practice. 16. Ms. Megha Jani, the learned counsel appearing for the writ applicant has argued that the rule in question is manifestly arbitrary, unreasonable and violative of Articles 14, 19(1)(g) and 21 respectively of the Constitution of India. She would argue that the rule, on one hand, prohibits even an entry of a person who is engaged in any service, employment, trade, business or profession at the stage of enrollment, while making it permissible for an enrolled advocate to change his profession and also to get back to the profession as a lawyer thereafter. It is argued that the rule should be declared as violative of the above referred articles of the Constitution. 17. Ms. Jani, in the alternative, submitted that this Court may read down the relevant rules of the State Bar Council to the effect that a person who makes a declaration that she is engaged in any service, employment, trade, business or profession, may be admitted as an advocate, however, the enrollment certificate may remain in the custody of the Bar Council until the advocate makes a declaration that the circumstances mentioned in Rule 2 have ceased to exist and that he/she intends to resum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alaried employee of any person, government, firm, corporation or concern, so long as he continues to practise and shall, on taking up any such employment intimate the fact to the Bar Council on whose roll his name appears, and shall thereupon cease to practise as an Advocate so long as he continues in such employment. Nothing in this rule shall apply to a Law Officer of the Central Government of a State or of any Public Corporation or body constituted by statute who is entitled to be enrolled under the rules of his State Bar Council made under Section 28(2)(d) read with Section 24(1)(e) of the Act despite his being a full time salaried employee. Law Officer for the purpose of this Rule means a person who is so designated by the terms of his appointment and who, by the said terms, is required to act and/or plead in Courts on behalf of his employer." 22. It is a settled law that in interpreting a statute or a rule, the Court must bear in mind that the legislature does not intend what is inconvenient and unreasonable. If a rule leads to an absurdity or manifest injustice from any adherence to it, the Court can step in. A statute or a rule ordinarily should be most agreeable to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondon Chartered Bank of Australia (1874) 5 PC 92, at p.108 observed as under:- "As has been pointed out by the House of Lords in (1874) 5 PC 92, at pg. 108, the tests to apply in considering whether rules are within the powers of the rule-making authority under a statute are: (1) Whether the rules are reasonable and convenient for carrying the Act into full effect; (2) Whether the rules relate to matters arising under the provisions of the Act; (3) Whether they relate to matters not in the Act otherwise provided for and (4) Whether they are consistent with the provisions of the Act. The validity of a rule is to be determined not so much by ascertaining whether it confers rights or merely regulates procedure, but by determining whether the rule is in conformity with the powers conferred under the statute and whether it is consistent with the statute, reasonable and not contrary to general principles." 26. We may quote with profit the observations of the Supreme Court in the case of Namit Sharma Vs. Union of India reported in (2013) 1 SCC 745. In that case, the subject matter before the Supreme Court was the one under the Right to Information Act, 2005. The Court made th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust outside the Municipal limits, namely, AUDA, would not be eligible for being treated as the local students. The Supreme Court noticed that the object of the rule was to provide medical education to the students of Ahmedabad who had acquired the necessary qualification, their selection being based on merit. If that was the object, the Supreme Court observed whether the classification based only on the location of the educational institutions within or outside the Municipal area would be a reasonable classification. The Court held that the answer had to be in the negative. However, despite coming to the conclusion that the High Court was right in holding that the rule in question suffered from an element of arbitrariness, the remedy did not lie in striking down the impugned Rules, the existence of which was necessary in the larger interest of the institution as well as the populace of the Ahmedabad Municipal Corporation. The Court observed that the striking down of the rule would mean opening the doors of the institution for admission to all the eligible candidates in the country, which would definitely be opposed to the very object of the establishment of the institution by a loc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed within the Ahmedabad Urban Development Area." 28. We now go back to the pivotal issue. What is the object behind Rules 1 and 2 of the State Bar Council (Enrollment) Rules and Rule 49 of the Bar Council of India Rules?. Why such a restriction is sought to be imposed?. Why the statute does not permit a person enrolled as an advocate with any particular Bar Council of the State from taking up any other vocation?. 29. According to the Black's Law Dictionary, a lawyer is "a person learned in the law; as an attorney, counsel or solicitor, a person licensed to practice law". The legal profession is not a business or a trade. A person practicing law has to practice in the spirit of honesty and not in the spirit of mischief-making or money-getting. The advocate is expected to devote full time to his profession of law. Although, the profession is called a noble profession, yet it does not remain noble merely by calling it as such unless there is a continued, corresponding and expected performance of a noble profession. Its nobility has to be preserved, protect and promoted. An institution cannot survive in its name or on its part glory alone. The glory and greatness of an institutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... himself enrolled as an Advocate with the State Bar Council should be asked at its inception to give up any other vocation, business or job and only, thereafter, he can be enrolled on the roll of the State Bar Council. We are dealing with a matter, in which, as single mother has come before us saying that no sooner she is enrolled as an Advocate after clearing the Bar Council Entrance Exam, then she would file a declaration on oath that she has given up the job which she has as on date. The lady is in a helpless situation. Today, if she gives up her job being a single mother, and god forbid if she is unable to clear the All India Bar examination, then she would be left without any means of livelihood. She has made herself very clear that she may be issued a provisional Sanad and such provisional Sanad shall remain in deposit with the Bar Council of Gujarat and she would obtain the final Sanad after clearing the Bar Council of India Exam. She has already filed an undertaking to this effect. We have quoted the entire undertaking in the earlier part of our judgment. If that be so, may it not be said that the object of Rules 1 and 2 respectively of the Bar Council of Gujarat (Enrollment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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