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TMI Blog2017 (6) TMI 1407X X X X Extracts X X X X X X X X Extracts X X X X ..... red 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner and informed the respondent no.2 that its opinion was sought and final decision would be taken and conveyed to the petitioner. It is further stated that even after the reference was made by respondent No.2 to respondent No.1, no decision was taken by respondent No.1 - Bar Counsel of India. Therefore, during the pendency of the petition before the learned Single Judge, direction was given to respondent No.1 - Bar Council of India to take a decision. Thereafter, the respondent No. 1 - Bar Council of India communicated to the respondent No.2 - Bar Council of Gujarat about the resolution No.191 of 2013 by addressing a letter dated 21.09.2013 wherein it was stated that considering the provisions of the Advocates Act, 1961, if the petitioner files an undertaking on an affidavit that she will not be employee of any establishment including GIDC, final enrollment certificate and certificate of practice can be granted by the State Bar Council subject to the fulfillment of other conditions prescribed by the State Bar Council. It is the say of the petitioner that she filed an undertaking. However, enrollment number was not provided to her. Petitioner, therefore, preferred the capt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of other allied departments are to be considered as an eligible candidate for the post of Civil Judge; (D) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, directions by directing the respondents, state of Gujarat, High Court of Gujarat (Administrative department) to permit the applicant herein to participate in the examination by permitting them to fill up the form in the Advertisement No.RC/0719/2017 and appear in the said advertisement. (E) During pendency and final disposal of the present Appeal, YOUR LORDSHIPS may be pleased to direct the respondents, State of Gujarat, High Court administrative department herein to permit me (Legal Side) in Legal Department and Legislative and Parliamentary Affairs Department to fill the form and appeal for examination for the post of Civil Judge in the Advertisement NO. RC/0719/2017;" 4. Heard petitioner - party-in-person, learned advocate Mr. Manan A. Shah for respondent No.1 - Bar Council of India and learned advocate Mr. R. C. Jani for respondent Nos. 2 and 3. 5. Petitioner mainly contended that her services in GIDC cannot be termed as employment. She i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GIDC be permitted to participate in the said recruitment process. 8. Petitioner, thereafter, submitted that the Legal Assistants and Law Clerks working in the establishment of High Court on contractual basis are also permitted to participate in the said recruitment process. However, the petitioner who is working on contractual basis with GIDC is not permitted to participate in the said recruitment process and therefore this Court may give appropriate direction to the Recruiting Agency. 9. On the other hand, learned advocates appearing for the respondents supported the reasonings recorded by the learned Single Judge and submitted that no error is committed by the learned Single Judge while dismissing the petition and therefore this Court may not interfere with the said order. 10. Having considered the submissions canvassed on behalf of the learned advocates appearing for the parties and having gone through the material produced on record, it has emerged that petitioner was selected in campus interview when she was studying in LL.B. Course at Maharaja Sayaji Rao University, Vadodara and she was appointed by GIDC as Legal Consultant. Letter dated 19.03.2012 is produced by the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l his name appears and shall thereupon cease to practise as an advocate so long as he continues in such employment. 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." 13. Thus, the word 'full time' used in Rule 49 of the Rules is also to be considered as full-time office standard number ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mittedly, by the above resolution of the Bar Council of India, the second and third para of Rule 49 have been deleted but we have to see the effect of such deletion. What Rule 49 of the BCI Rules provides is that an advocate shall not be a full time salaried employee of any person, government, firm, corporation or concern so long as he continues to practice. The 'employment' spoken of in Rule 49 does not cover the employment of an advocate who has been solely or, in any case, predominantly employed to act and/or plead on behalf of his client in courts of law. If a person has been engaged to act and/or plead in court of law as an advocate although by way of employment on terms of salary and other service conditions, such employment is not what is covered by Rule 49 as he continues to practice law but, on the other hand, if he is employed not mainly to act and/or plead in a court of law, but to do other kinds of legal work, the prohibition in Rule 49 immediately comes into play and then he becomes a mere employee and ceases to be an advocate. The bar contained in Rule 49 applies to an employment for work other than conduct of cases in courts as an advocate. In this view of the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gujarat. (iii) Office of the Government Pleader, City Civil Court, Ahmedabad. (iv) Office of Legal Section of the Legal Department, Sachivalaya, Government of Gujarat, Gandhinagar." 19. 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. 20. Thus, in view of the aforesaid discussion, the appellant - petitioner is also not entitled to the additional relief/s as prayed for in the present appeal. Accordingly, the appeal is dismissed. ORAL ORDER 21-09-2017 ORDER (PER : HONOURABLE THE CHIEF JUSTICE MR. R. SUBHASH REDDY) This matter is placed on board pursuant to note dated 05.09.2017 submitted by Mr. Manan Shah, learned advocate for respondent no.1. We have perused the note. It appears that thoug ..... X X X X Extracts X X X X X X X X Extracts X X X X
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