Advocates who voluntarily suspend legal practice for government employment not members of Bar: Kerala High Court

The Kerala High Court recently held that a person who had earlier enrolled as an advocate and later suspended legal practice to serve as a government employee, cannot be treated as a “member of the Bar” [Saumya MS v. State of Kerala & Ors]..A Division Bench of Justices Alexander Thomas and Viju Abraham held that in view of the provisions of the Advocates Act and the Bar Council of India Rules,"So the inevitable consequence of the statutory provisions in such a situation is that the said person, who has initially secured enrollment with the State Bar Council and who later secured voluntary suspension of legal practice, consequent to taking up of employment, including public employment, will cease to have the right to be an Advocate or to practice as an Advocate, so long as the voluntary suspension is in force.".The petitioner before the High Court had enrolled as an advocate with the Bar Council of Kerala in 2007. However, when she secured employment in government service in 2012, she suspended her legal practice in terms of the provisions contained in the Advocates Act and the Bar Council of India Rules.In 2017, the Kerala Public Service Commission issued a notification calling for applications to the post of Assistant Public Prosecutor-Grade II, which required, among other qualifications, the applicant to be a member of the Bar with not less than three years of active practice in criminal courts.The petitioner approached the High Court challenging the verdict of the Division Bench of the Kerala Administrative Tribunal, Thiruvananthapuram which had held that the petitioner, being a full-time serving government employee who had suspended her legal practice, cannot be treated as "a member of the Bar" for the purpose of selection and appointment as APP-Grade II. .The Court found that any person who legally suspends their practice will cease to have the right to practise as an advocate in terms of Sections 30 and 33 of the Advocates Act, so long as the said person is in employment.Moreover, from the cumulative and combined effect of Rules 49 and 5(1) of the Bar Council Rules, upon voluntarily suspending the practice, the person concerned will have to surrender the original certificate of enrolment to the State Bar Council. It was further found that as per Rule 6 under Chapter III of Part VI of the BCI Rules, an advocate who is under suspension shall be under the same disability during the period of such suspension as an advocate whose name has been removed from the roll, and that Rule 6(2) does not make any distinction as between voluntary suspension and penal suspension.In this context, the Court also held that such a person who has suspended their legal practice cannot be called a "member of the Bar"."...in order to describe a person as being a member of the Bar, he/she should be a member of the legal profession, who earns a livelihood through the profession of legal practice carried on the courts, Tribunals, etc," the judgment stated.While dismissing the petition, the Court held,"So long as a person like the applicant does not have the legal right to practise as an Advocate in terms of Secs.30 and 33 of the Act, in view of the abovesaid aspects and the consequences flowing from the Act and the Rules, it cannot be said that such a person should be a member of the Bar...".Advocate N Asok Kumar appeared for the petitioner. Advocate Saigi Jacob Palatty represented the State, while Advocate PC Sasidharan argued for the Kerala Public Service Commission. Advocate Nirmal V Nair appeared for various other respondents..[Read Judgment]