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TMI Blog2017 (6) TMI 1334X X X X Extracts X X X X X X X X Extracts X X X X ..... t constitution of the committee may be dealt with, Bar Council of India had on the contrary required personal presence of the petitioner for giving opportunity to her for hearing. As the party-in-person was not able to remain present, in the fairness, the committee was constituted headed by the Retired Honourable Judge of this Court to have a proper decision on the issue. No illegality was committed by the Bar Council of India in constituting the committee. It was rather just, fair and reasonable stand to have an objective view. Looking at Rule 49 of the Bar Council Rules, it provides that an advocate shall not be a full-time salaried employee. The conditions attached to the contract of service of the petitioner with the Corporation are reflective of the nature of the employment. The employment envisages that services are required to be rendered during the standard hours of service as per condition No.2. Condition Nos.9 and 7 show that service as legal assistant rendered by the petitioner is a full-time job and attaches with it monthly payable amount of 25,000/- - The mode of payment of TDS cannot determine the nature of employment for the purpose of Rule 29 of the Rules. Nothing c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g further is stated by way of clarification. *"That as Supreme Court has struck down the appearance by Law Officers in Court even on behalf of their employers the Judgement will operate in the case of all Law Officers. Even if they were allowed to appear on behalf of their employers all such Law Officers who are till now appearing on behalf of their employers shall not be allowed to appear as advocates. The State Bar Council should also ensure that those Law Officers who have been allowed to practice on behalf of their employers will cease to practice. It is made clear that those Law Officers who after joining services obtained enrolment by reason of the enabling provision cannot practice even on behalf their employers." *"That the Bar Council of India is of the view that if the said officer is a whole time employee drawing regular salary, he will no be entitled to be enrolled as an advocate. If the terms of employment show that he is not in full time employment he can be enrolled." 3. Adverting to the facts pleaded in the petition and available from the record of the petition, the petitioner herein having passed out five years integrated course of B.A., LL.B. from Maharaja Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Jalpa P. Desai. Resolution No. 191/2013 "The report dated 23.8.2013 submitted by Hon'ble Shri Rameshcnahdra G. Shah, Member, Bar Council of India in regard to enrolment of Ms.Jalpa P. Desai be and is hereby accepted. REPORT IN THE MATTER OF MS. JALPA P. DESAI I have perused the record such as enrolment application of Ms. Jalpa P. Desai and letter No. BCG: 1509/2012 dated 8.10.12. On page-4 vide para-16 of the enrolment application it has been stated that she is presently in employment or service with Gujarat Industrial Development Corporation for one year contract basis as providing services as a Law Professional Legal Expert with a panel Advocate of the Corporation on record. It is also noticed from the agreement made between Gujarat Industrial Development Corporation and Ms. Jalpa P. Desai that her services was hired for one year on the contract basis on the lump sum amount of ₹ 25,000/- per month. It seems that she might be helping in the case matter to the Advocates on panel. Fact remains, but her service has been hired for one year on contract basis. It amount to rendering of services which is violation of Rule-49 of Chapter-II, Part-6 of the Rule of Bar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeting was called on 03rd March, 2016 after issuing notice to the petitioner to remain present on that date; petitioner expressed her inability to come to Delhi at such a short notice. It was further stated in the affidavit that therefore on 03rd March, 2016 Bar Council of India passed Resolution No.107 of 2016 resolving that Council was not in a position to inquire and investigate into the matter in absence of the applicant, therefore it was resolved to constitute a Committee headed by Honourable Mr.Justice R.C. Mankad, Retired Judge of High Court of Gujarat, and place a report before the Council. 3.6 The Committee headed by Honourable Mr.Justice R.C. Mankad (Retd.) and comprised of Shri D.K. Patel, Chairma, Enrolment Committee, Shri N.M. Anadkat, Member, Enrolment Committee and Shri N.D. Patel, Member, Enrolment Committee gave its report on 20th August, 2016. The Committee rejected the request of the applicant for enrolment, for the reasons stated therein. It reads as under, reproducing it in its entirety, "Committee has considered the resolution passed by the Bar Council of India resolution No. 191/2013 dated: 21/09/2013 as well as the letter dated: 30/03/2016 of BCI:D:1377 (C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the contract of Ms. J. P. Desai, and GIDC is amount to rendering of services which is violation of Rule-49 of Chapter-II, Part-6 of the Rule of Bar Council of India. As per the provisions of Sec.26(2) of the Advocates Act, 1961, Disposal of application for admission as an Advocate and in sub-section 3 of the Advocates Act, 1961, "the enrolment committee of a State Bar Council shall dispose of any application referred to the Bar Council of India under sub-section (2) in conformity with the opinion of the Bar Council of India." Considering the resolution passed by the Bar Council of India, submissions made by Ms. Jalpa P. Desai and the relevant provisions of Sec. 26(2) of the Advocates Act, 1961, the Committee is of the view that the application of Ms. Jalpa P. Desai deserves to be rejected. Therefore, considering all the facts and circumstances of the case, the resolution of Bar Council of India referred to above and the relevant provisions of the Advocates Act, 1961, the Committee rejects the enrolment application of Ms. Jalpa P. Desai. The applicant to be informed accordingly." 3.7 Rule was issued by this Court as per order dated 15th September, 2016 taking note of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as for professional services and that in view of Section 194J of the Income-Tax Act, what was paid to her was was not the salary. The contentions raised by partyin- person were inclusive of all those contentions which were canvassed before the Letters Patent Bench and dealt with by the Division Bench while allowing the Division Application of respondent No.2-Bar Council of Gujarat. 4.3 On the other hand, learned advocates for the respondent Nos.1 and 2 supported the decision of applying Rule 49 and submitted that having regard to the nature of engagement of the petitioner with the Corporation and the conditions attendant to the engagement as legal assistant, it was not permissible to enroll the petitioner. They relied on the aspect that the Division Bench of this Court had considered the case of both the sides in the Letters Patent Appeal. According to their submissions, interim order granted by order dated 17th November, 2016 was in the nature of final relief and it was such interim order that was dealt with by the Letters Patent Bench and came to be set aside on merit consideration. Learned advocates relied on decision of the Apex Court in Satish Kumar Sharma v Bar Council of Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Retired Judge of the High Court, obtained report. The final decision was taken on the basis of such report to refuse the enrolment to the petitioner on the ground that it would be in contravention of Rule 49 of the Rules. Thus the expert committee went into the issue and answered it. At this stage contention of party-in-person about constitution of the committee may be dealt with, Bar Council of India had on the contrary required personal presence of the petitioner for giving opportunity to her for hearing. As the party-in-person was not able to remain present, in the fairness, the committee was constituted headed by the Retired Honourable Judge of this Court to have a proper decision on the issue. No illegality was committed by the Bar Council of India in constituting the committee. It was rather just, fair and reasonable stand to have an objective view. 5.1 Looking at Rule 49 of the Bar Council Rules, it provides that an advocate shall not be a full-time salaried employee. The conditions attached to the contract of service of the petitioner with the Corporation are reflective of the nature of the employment. The employment envisages that services are required to be rendered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be in the office from 11.00 a.m. to 5.00 p.m which are standard hours of work, prima facie it is to be considered as full-time employment. Having regard to such terms of contract to render services by attending office for full-time, that is, from 11.00 a.m to 5.00 p.m and further having regard to fixed salary of ₹ 25,000/- per month being given to the 1st respondent, prima facie we are of the view that the 1st respondent-petitioner is not entitled to grant of certificate of practice under the Advocates Act, 1961 in view of Rule 49 of the Bar Council of India Rules. Learned single Judge, mainly on the ground that Bar Council of India has not taken any decision, has passed orders granting interim relief in terms of para 7(C) of the petition. It is also to be noticed that in para 7(C) of the petition, the petitioner sought direction to grant temporary enrollment number on the ground that she has cleared the Bar Council examination and she is entitled to practice. Under the scheme of the Advocates Act, 1961 and the rules framed thereunder there is no provision for grant of temporary certificate by the Bar Council for practising as an advocate. Even assuming that tax at so ..... X X X X Extracts X X X X X X X X Extracts X X X X
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