Can full-time salaried law officers be considered Advocates? What the Allahabad HC held

The Allahabad High Court recently held that full-time salaried law officers cannot ordinarily be viewed as advocates, even if they occasionally appear in courts during such employment..The Bench of Justices Pankaj Mithal and Saumitra Dayal Singh observed,.“… [the] mere occasional appearance of such employees in Courts/tribunals while in full time employment in few cases that too solely on behalf of their employer cannot be taken to mean that they are continuing to be in practice as advocates. .It is but natural that in such employment their main job is not that of pleading and arguing cases before the law courts on behalf of a variety of persons as is expected of an advocate. The nature of their duties is mostly of advising, conveyance etc., which may not allow them enough time for regular appearance before the law courts thus depriving them of experience of a lawyer. .Any effort to treat persons in such employment as practicing advocates would be de hors of Rule 49 of the Bar Council of India Rules.“.The Court made the observation while dealing with a writ petition filed by a law officer of the State Bank of India (SBI) after his candidature to appear for the Uttar Pradesh High Judicial Services Exam had been rejected..Prior to joining SBI, the petitioner had practiced in district courts between 2010 and 2014. In 2014, he took up full-time employment with SBI. However, he never surrendered his licence to practice and the same was never formally suspended. Further, he also appeared in courts to assist Senior Counsel in bank matters during his employment at SBI. Such appearance is permitted by Reserve Bank of India (RBI) circulars and guidelines..While this was the case, the petitioner was not permitted to appear for the Judicial Services Exam in 2018. The reason cited for rejecting his candidature was that he was in full time ‘employment’ of the Bank. As such, a Selection Committee informed that he could not be permitted to appear for the exam as he was not an advocate of standing required under the Uttar Pradesh Higher Judicial Service Rules, 1975..Rule 5 of the 1975 Rules requires that a non-judicial officer must have at least 7 years’ standing as an advocate in order to be eligible for appointment as a District Judge. The same is reflected in Article 233 of the Constitution of India..In the writ petition filed against the rejection of his candidature, the petitioner contended that despite full-time employment at SBI, he continued to practice law by appearing before the courts. Therefore, he argued that his candidature could not be rejected merely because he was a full-time employee of the Bank. .The Court, however, disagreed, opining that,.“…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.”.In this regard, reference was made to Rule 49 of the Bar Council of India (BCI) Rules. This Rule states that a person would cease to practice as an advocate so long as he continues in full-time salaried employment of a government, firm, corporation or concern..The Bench highlighted,.“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….…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 view of this legal fiction, the Court proceeded to point out,.“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… The period of full time employment cannot be treated as time spent on practice as an advocate.”.Predominant purpose of employment.The High Court’s judgment indicates that the general rule is that a full-time salaried law officer cannot be termed as an advocate. However, the Court noted that an exception to this rule was recognised by the Supreme Court in Deepak Aggarwal v. Keshav Kaushik and others. .In this case, it was held that law officers such as public prosecutors, assistant public prosecutors, district attorneys, assistant district attorneys, deputy advocate general etc. would continue to be viewed as advocates within the meaning of Article 233 of the Constitution, even if they are full-time employees of the government. This was because,.“…the predominant purpose of the employment in such a situation was that of an advocate rather than that of an official of the Government… Their work during employment was treated to be predominantly to be of an advocate and was thus added towards standing as an advocate…”.However, employment in other capacities cannot be treated in this manner. As noted in the High Court’s judgment,.“In such other services appearance before the Court is occasional and is not the predominant part of the duties.“.This was the case in the petition before the Court as well. The Bench noted,.“In the present case, there is no material or evidence to establish that the predominant function of the employment of the petitioner as defined/described in the letter of appointment issued to him by his employer Bank is that of practice as a lawyer and that the other functions discharged by him are only bare minimum or incidental. .The Circular letter of the Reserve Bank of India does not seek to alter the terms and conditions of employment of the petitioner, neither do stray appearances recorded in some court cases establish that the Bank had engaged the services of the petitioner, predominantly to represent it in cases before courts, tribunals etc.“.In view of the same, the Court pointed out that the petitioner would not have the necessary seven years’ standing as an advocate, which “is one of the essential eligibility conditions for appointment as District Judge.”.Therefore, the Bench proceeded to dismiss the writ petition, holding,.“… we are of the opinion that in the light of the legal fiction created by Rule 49 of the Bar Council of India Rules, the petitioner who has full time employment of the SBI ceased to be an advocate and his service period would not be counted/added in his practice as an advocate to make him eligible for UPHJS.”.Read the Judgment: