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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION NO. 19743 of 2015

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE N.V.ANJARIA

==========================================================

1 Whether Reporters of Local Papers may be allowed

to see the judgment ? No

2 To be referred to the Reporter or not ? No

3 Whether their Lordships wish to see the fair copy of

the judgment ? No

4 Whether this case involves a substantial question of

law as to the interpretation of the Constitution of No
India or any order made thereunder ?

==========================================================
JALPA PRADEEPBHAI DESAI....Petitioner(s)
Versus
BAR COUNCIL OF INDIA & 2....Respondent(s)
==========================================================
Appearance:
PARTY-IN-PERSON, PERSONAL CAPACITY for the Petitioner(s) No. 1
MR MANAN A SHAH, ADVOCATE for the Respondent(s) No. 1
MR RC JANI, ADVOCATE FOR RC JANI & ASSOCIATE, ADVOCATE for the
Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1 - 3
==========================================================

CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA

Date : 16/06/2017

ORAL JUDGMENT

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By filing the present petition under Article

226 of the Constitution, the petitioner has prayed to
direct the respondents to act in accordance with the
guidelines in respondent No.1-Bar Council of India's
letter dated 21st September, 2013. It is further prayed
to direct the respondents to issue permanent enrolment
number to the petitioner in view of decision taken by
respondent No.1 as per its aforementioned letter dated
21st September, 2013. Another prayer was made to direct
respondent Nos.2 and 3 to grant temporary enrolment
number to the petitioner.

1.1 As averred in the first paragraph of the

petition, the challenge is directed against the action
of respondent Nos.2 and 3 in not enrolling the
petitioner as an advocate despite the decision of
respondent No.1-Bar Council of India reflected in
Resolution dated 24th August, 2013 bearing Resolution
No.191 of 2013. Shortly stated, the grievance in the
petition is about non-granting of enrolment to the
petitioner as an advocate to practice law by the
respondents Bar Councils.

2. The issue arises with reference to Rule 49

of Chapter-II Part-6 of the Bar Council of India
Rules. In order to address and appreciate the
controversy, the said Rule is usefully reproduced at
the outset hereinbelow.

“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 such employment, intimate the
fact to the Bar Council on whose roll his name appears

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and shall thereupon cease to practise as an advocate so
long as he continues in such employment.”

2.1 Below the Rule, the following 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
Sayaji Rao University, Vadodara, got selected during
her academic period in campus interview of Gujarat
Industrial Development Corporation (hereinafter
referred to as 'the Corporation') and she was given
appointment as Legal Consultant also known as legal
expert having been so selected. Copy of selection
letter dated 19th March, 2012 which is on record, inter
alia stated that as per the contract agreement
executed between the Corporation and petitioner for
taking services of the petitioner as legal expert,
petitioner is required to join. It appears that while
the petitioner was engaged as Legal Consultant or

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legal expert with the Corporation, she wanted to get

Sanad for practicing in law in the Bar Council of
Gujarat-respondent No.2 herein. It further appears
that petitioner was informed that she was required to
be given undertaking on affidavit that she is not an
employee of any establishment including the
Corporation, which is a condition for getting
enrolment as an advocate.

3.1 The petitioner applied for enrolment before

the Bar Council of Gujarat on 19th June, 2012. As the
Enrolment Committee noticed that the petitioner was
associated with the Corporation as a legal expert
rendering her services in that capacity from 16th June,
2012 and was getting amount of Rs.25,000/- per month,
Bar Council of Gujarat decided to call for an opinion
from Bar Council of India. Section 26 of the Advocates
Act, 1961 deals with the disposal of applications for
admission as an advocate and sub-section (2) thereof
provides that where the Enrolment Committee of State
Bar Council proposes to refuse any such application,
it shall refer such application to Bar Council of
India for its opinion. Sub-section (3) of Section 26
provides that the Enrolment Committee of State Bar
Council shall dispose of any application referred to
the Bar Council of India under sub-section (2) in
conformity of the opinion of the Bar Council of India.

3.2 The Bar Council of India communicated to the

Bar Council of Gujarat about Resolution No.191 of
2013, by addressing letter dated 21st September, 2013.
The said law is reproduced hereinbelow which contains

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Resolution No.191 of 2013 as well as mentions about

the report.

“Sir,

The General House of the Council at the meeting held on

24th August, 2013 under Item No. 256/2013 has passed the
following resolution regarding Enrolment matter of Ms.
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 Rs.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 Council of India.

In view of the above considering the provisions of the

Advocates Act, if the applicant Ms. Jalpa P. Desai
files undertaking on affidavit that she will not be
employee of any establishment including Gujarat
Industrial Development Corporation. Thereafter final
enrolment certificate and certificate of practice can
be granted by the State Bar Council subject to the
other conditions fulfillment prescribe by the State Bar
Council.”

3.3 It was thus stated that provided the

applicant files an undertaking and affidavit that she
will not be the employee of the Corporation, the final

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enrolment certificate could be granted. It appears

that affidavit and undertaking dated 07th November,
2013 was given by the petitioner as under.

“AFFIDAVIT OF UNDERTAKING

I the undersign Jalpa Pradeepbhai Desai do here by

state on solemn affirmation that on completion of my
contract with GIDC, I shall not be the employee of any
establishment including GIDC. This undertaking is being
affirmed with refer to opting Sanad & permission to
practice as an Advocate from Bar Council Of Gujarat, as
its directed by Bar Council of India Vide its letter
no. BCI: D: 4477/2013 (Council Mtg. 24.8.2013) dated
21/9/2013.”

3.4 It is the case of the petitioner that

despite the aforesaid undertaking and reminder letters
to both respondent Nos.1 and 2, enrolment number was
not provided to her and the respondents had turned
their ears deaf. Letters were addressed by the
aggrieved petitioner and further correspondence ensued
between the petitioner and Bar Councils. As the
request for granting enrolment number was not being
considered, the petitioner filed the present petition
with the prayers as aforesaid. As the issue appeared
to be on hold pending with the respondent-Bar Council
of India, in the orders passed by this Court during
the pendency of the matter, respondent Nos.1-Bar
Council of India was directed to expedite its
decision. Pursuant to order dated 25th February, 2016
passed by the Court during the pendency of the
petition requiring the respondents to complete the
procedure at their end, respondents activated
themselves.

3.5 On behalf of the first respondent-Bar

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Council of India, affidavit-in-reply dated 30th March,

2016 was filed stating inter alia that for completing
the procedure regarding enrolment of the petitioner as
per the directions of the Court, an urgent meeting
meeting 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 (Council-AT). Considering this letter the
resolution passed by the Bar Council of India by its
resolution no. 68/2016 in which it is resolved to
constitute a Committee headed by a former Judge of
Gujarat High Court namely Hon'ble Mr. Justice R.C.
Mankad to enquire into the matter and place his report

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before this Council preferably within a period of one
month from today. After that the Committee has called
the applicant Ms. Jalpa P. Desai on following dates
04/06/2016, 02/04/2016, 14/08/2016, 17/08/02016 and
20/08/2016 for finalising the matter of Ms. Jalpa P.
Desai. Today, i.e. on 20/08/2016 Ms. Jalpa P. Desai has
submitted written arguments before the Committee. As
per the resolution passed by the Bar Council of India
bearing resolution no. 191/2013 there is a clear cut
report that after considering all documents, “I have
perused the record such an enrolment application of Ms.
Jalpa P. Desai and letter No. BCG:1509/2012 dated:
08.10.2012. 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 Rs.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 amounts to rendering of services which is
violation of Rule-49 of Chapter-II, Part-6 of the Rule
of Bar Council of India.” This clear decision is made
by the Bar Council of India. The Bar Council of India
has also passed the resolution that in view of the
above considering the provisions of the Advocates Act,
if the applicant Ms. Jalpa P. Desai files undertaking
on affidavit that she will not be employee of any
establishment including Gujarat Industrial Development
Corporation. Thereafter final enrolment certificate and
certificate of practice can be granted by the State Bar
Council subject to the other conditions fulfilment
prescribe by the State Bar Council. Considering the
above said resolution of Bar Council of India, it is
clear that 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

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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 aforesaid
report. It further appears that the Court thereafter
considered the question of interim relief as reflected
in order dated 17th November, 2016. This Court by said
order dated 17th November, 2016 granted interim relief
to the petitioner in terms of paragraph 7(C) directing
the respondent No.2-Bar Council of Gujarat to provide
temporary enrolment number to the petitioner
forthwith.

3.8 The aforementioned order dated 17th November,

2016 was taken by the Bar Council of Gujarat in
Letters Patent Appeal No.1296 of 2016. In an event
having significant bearing on the controversy, the
Division Bench allowed the Letters Patent Appeal by
its judgment dated 22nd December, 2016 and set aside
the said interim order dated 17th November, 2016
impugned before it after dealing the case on merits at
that stage.

4. Petitioner who appeared as party-in-person,

was heard extensively. Since the petitioner was a
party-in-person, she was allowed to submit written
submissions, which she submitted at the end of the
hearing after arguing the case. The written
submissions were accompanied by the documents already
forming part of the petition. They were also

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considered by the Court. Also heard learned advocate

Mr.Manan Shah for respondent No.1 and learned advocate
Mr.R.C. Jani for respondent No.2.

4.1 The party-in-person contended that she ought

to have been allowed enrolment by the respondents as
she was not in the employment of the Corporation. She
assailed as erroneous the decision of the Bar Council
of India and that of Committee constituted by it to
deny her the enrolment in view of Rule 49 of the
Rules. The decision was described as mala fide by the
party-in-person. It was contended by party-in-person
that Bar Council of India had no powers to constitute
the committee which it constituted and the report was
obtained. She also tried to raise a contention that
report of the Committee appointed by Bar Council of
India was titled as judgment rather than report.

4.2 The party-in-person next submitted that she

was only Legal Consultant with the Corporation and her
engagement could not be said to be debilitating for
getting enrolled. She submitted with reference to the
letters of the Corporation that even the Corporation
termed her engagement as contractual only. She further
submitted that she was never treated as an employee
and was paying tax at source using form 16A which was
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 party-
in-person were inclusive of all those contentions
which were canvassed before the Letters Patent Bench
and dealt with by the Division Bench while allowing

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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 Himachal Pradesh
[(2001) 2 SCC 365] as also another decision in Madhav
M .Bhokarikar v Ganesh M. Bhokarikar (dead) through
LRs [(2004) 3 SCC 607] to highlight the compass of
operation of Rule 49 and its applicability of the
facts of the case.

4.4 The Bar Council of Gujarat contested the

petition by filing affidavit, in which it inter alia
pinpointed certain conditions being Nos.2, 7, 9 and 10
governing the contract of engagement as legal
assistant between the petitioner and the Corporation.
In the affidavit, it was contended after reference to
the said contention that the contract between the

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petitioner and the Corporation was in the nature of

service contract and such employment of the petitioner
with the Corporation was violative of requirement of
Rule 49 of the Bar Council of India Rules.

4.5 It highlighted the following conditions from

the contract between the petitioner and the
Corporation.

“Condition No.2: With a view to discharge the duties

properly and efficiently, the second party agrees to
visit/attend the office of the first party regularly as
per the standard office hours in force.

Condition No.7: The second party also agrees to deposit

an amount equal to one months remuneration or give
appropriate security/bank guarantee for the same, which
will be forfeited by the first party in case of
premature termination of contract by the second party
without completion of one year of service in the
corporation. First party will be at liberty to
terminate the contract with prior notice of 1 month.

Condition No.9: If during the discharge of its assigned

work, the second party has to visit any outstation
place, the second party shall be entitled for
appropriate travelling and daily allowances as are
normally available to the employees of the first party.

Condition No.10 : The second party, with the consent of

the first party may be excused from clause (2) of this
agreement, entitled to avail leave for 12 days in
his/her total tenure i.e. one per month.”

5. The issue required to be resolved was

whether the engagement of the petitioner with the
Corporation as Legal Consultant would violate the Rule
or not. Exercising powers under sub-section (2) of
Section 26 of the Advocates Act, 1961, respondent
No.2-Bar Council of Gujarat solicited opinion of
respondent No.1-Bar Council of India. Respondent No.1
adopted an objective procedure of appointing a
Committee of Retired Judge of the High Court, obtained

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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 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 Rs.25,000/-. The petitioner
joined the Corporation in the year 2012 and the
contract has continued having been renewed on year-
to-year basis till date. Apart the continuation of the
petitioner as legal expert for such period,

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considering the aforesaid conditions, nature of

employment and the kind of contract entered into
between the petitioner and the Corporation requiring
the petitioner to work as legal assistant or legal
expert, make it evident that the same could well be
comprehended within the phrase in Rule 49 “a full-time
salaried employee”. It is the condition of the
contract, the nature thereof and other attendant
features of service which would determine whether the
petitioner could be comprehended as full-time salaried
employee with the Corporation or not. The mode of
payment of TDS cannot determine the nature of
employment for the purpose of Rule 29 of the Rules.

5.2 The Division Bench, while allowing the

Letters Patent Appeal No.1296 of 2016 and vacating the
interim relief and setting aside the interim order
dated 17th November, 2016, having quoted Rule 49 in
paragraph 9 of the judgment, adverted to discuss the
conditions of the contract and the nature thereof and
recorded its findings which are virtually enveloping
the answers to the issues and enlightening as well.
They are reproduced as under.

“11. As per condition no. 2, the 1st respondent agreed

to visit/attend the office of the first party-Gujarat
Industrial Development Corporation regularly as per the
standard office hours in force. As per condition no. 7,
the 1st respondent agreed to deposit an amount equal to
one months remuneration which is agreed to be forfeited
by the first party, that is, the Corporation in case of
premature termination of contract by the 1st
respondent-original petitioner. It is also not in
dispute that she is paid fixed sum of Rs.25,000/- per
month. 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. The term

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full time used in Rule 49 of the Rules is also to be
considered as full-time office standard number of
hours. When it is admitted that 1st respondent 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
Rs.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 source is deducted from the
remuneration/fees payable to the 1 st respondent-
petitioner under the provisions of the Income Tax Act,
1961, but at the same time, the same by itself cannot
be determinative factor when the claim of the 1st
respondent is barred under Rule 49 of the Rules. In
view of the conditions of the service contract of the
1st respondent with the Gujarat Industrial Development
Corporation, we are convinced that the service of the
1st respondent is full-time employment and she is not
entitled for grant of an temporary certificate as per
the interim orders passed by the learned single Judge.
Further we also notice from the material placed on
record that when the interim relief was sought on
earlier occasion, the same was refused by the learned
single Judge. In that view of the matter, we are also
of the view that grant of such interim relief amounts
to allowing the main petition filed by the 1st
respondent.

12. For the aforesaid reasons, we find merits in this

appeal. Accordingly, the Letters Patent Appeal is
allowed by setting aside the order dated 17.11.2016
passed by the learned single Judge in Special Civil
Application No. 19743 of 2015. However, we make it
clear that the findings and observations recorded in
this judgment are made for the purpose of disposal of
this appeal and the Special Civil Application is to be

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disposed of on its own merits. Liberty is granted to
1st respondent-original petitioner to move the learned
single Judge for expeditious disposal of the petition.
Since the main appeal itself is allowed, the connected
Civil Application does not survive and the same stands
disposed of.”

6. Having independently examined the case of

the petitioner and the rival contentions at this final
stage and upon appreciating by going into the aspects
of the merits threadbare, nothing could be propounded
to persuade the Court to take a different view. From
the totality of operation of the facts and considering
the nature of the service contract of the petitioner
with the Corporation, there is no gainsaying that the
petitioner incurs debility in terms of Rule 49 as her
employment could be characterised as a full-time
salaried employment. As a result, refusal by the
respondents to grant the petitioner enrolment and the
certificate to practice law could be said to be
eminently proper and legal.

7. For the reasons aforesaid, petition is

devoid of merits and prayers could not be considered.
Petition stands dismissed.

Rule is discharged.

(N.V.ANJARIA, J.)
Anup

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