A Full Time Salaried Employee Ceases To Practice As An Advocate: Allahabad High Court (read judgment in brief) AMARESH PATEL Legal Article Thu, Apr 18, 2019, at ,11:34 AM The division bench comprising of Justice Pankaj MIthal and Justice Saumitra Dayal Singh of Allahabad High Court in Shiv Kumar Pankha v. Honerable High Court of Judicature at Allahabad and another, (writ No. 25580 of 2018) observed that occasional appearance of Full Time Salaried employees in Courts/Tribunals on behalf of their employer can not be taken to mean that they are continuing to be in practice as advocates. The two petitioners, who are candidates for the U.P. Higher Judicial Service Examination-2018 have filed this petition against the order dated 28.11.2018 rejecting their candidature and for seeking a direction to permit them to participate in the process of the said examination despite the fact that they are in full time employment as Law Officers with the State Bank of India (in short SBI) and Punjab National Bank (PNB) respectively. It is admitted that the petitioner is a Scheduled Tribe candidate who did his LLB from Banaras Hindu University in 2010.He is enrolled as an advocate with the Bar Council of Delhi and is working as Law Officer with the SBI. After, he got himself enrolled on 8.10.2010 with the Bar Council of Delhi, he started practicing in district courts at Rohini and got himself registered as the member of Rohini Bar Association. He practiced as such from 8.10.2010 till 6.10.2014. He took up full time employment on 7.10.2014 with the SBI as Law Officer. The petitioner never surrendered his license to practice and it was never suspended despite information of employment to the Bar Council. During his employment with the SBI he appeared in courts and provided legal assistance to senior counsel of the Bank at Allahabad and Lucknow in the matters relating to Bank. He had appeared on behalf of the Bank before the Debt Recovery Tribunal/Debt Recovery Appellate Tribunal. In short, he regularly acted/pleaded before the various courts/tribunals on behalf of the Bank while in its service. The guidelines/circulars of the Reserve Bank of India permit the Law Officers of the Bank to participate in legal proceedings before the courts. Thus, the petitioner never ceased to practice law before the courts despite full time employment with the Bank. The petitioner while working as Law Officer with the Bank was not called upon to do any work which may be inconsistent with the legalprofession/practice as an advocate. While considering their plea, the court noted Rule 49 of the Bar Council of India Rules and observed that it completely prohibits an advocate from taking any full time employment during his continuance of practice and provides that if he so takes up employment, he shall inform the Bar Council whereupon he shall cease to be in practice as an advocate so long his employment continues. Therefore, as soon as an advocate enrolled with the Bar Council takes up full time salaried employment he ceases to practice as an advocate, it said. The court added: "Rule 49 of the Bar Council of India Rules clearly stipulates that an advocate who accepts a full time salaried employment ceases to practice as an advocate so long as he continues in such employment. In other words, as soon as an advocate enters into full time salaried employment, he loses the right to practice even though he may represent the employer before the law courts. Rule 49 of the Bar Council of India Rules creates a legal fiction to the effect that a person duly enrolled as an advocate ceases to be one as soon as he takes a full time employment on salary even if continues to occasionally appear in law Court." In this case, the court said that the period of full time employment as Law Officer with the Bank despite his appearance before the court as part of the service condition would not make him a practicing advocate for the purpose of selection/appointment as District Judge.” After the above constitutional provision comes the Bar Council of India Rules framed under Section 49 of the Advocates Act, 1961. Rules 47 to 52 of the said Rules provide regarding employment of an Advocate. In this regard, Rule 49 is relevant of our purpose and is quoted below:- “49. An advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practise, and shall, on taking up any 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” The aforesaid rule completely prohibits an advocate from taking any full time employment during his continuance of practice and provides that if he so takes up employment, he shall inform the Bar Council whereupon he shall cease to be in practice as an advocate so long his employment continues. Therefore, as soon as an advocate enrolled with the Bar Council takes up full time salaried employment he ceases to practice as an advocate. The court said that the issue is very simple if we go by the strict literary sense in which the aforesaid provisions have been couched. Article 233 (2) clearly provides 7 years standing as an advocate as the condition for eligibility for appointment as District Judge. Same is the position that has been reiterated by Rule 5 (c) of the UP HJS Rules, 1975. Thus, 7 years of standing as an advocate on the relevant date is sine-qua-non for appointment as District Judge or in UP HJS. At the same time Rule 49 of the Bar Council of India Rules clearly stipulates that an advocate who accepts a full time salaried employment ceases to practice as an advocate so long as he continues in such employment. In other words, as soon as an advocate enters into full time salaried employment, he looses