In a matter before the Allahabad HC in which two candidates for UP Higher Judicial Service Examination-2018 has approached the High Court challenging the rejection of their Candidature on the ground that they are in full-time employment as law officers in banks. Therefore fails to fulfil the minimum requirement of 7 years of practice as an Advocate/Pleader.
The petitioner contended that they as a law officer have participated in the legal proceedings before the courts on behalf of their employer and hence even though being full-time employed never ceased to practice law before the courts.
The division bench of Justice Pankaj Mithal and Justice Saumitra Dayal Singh that in their reply quoted Rule 49 of the Bar Council of India and held “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.” The court in its ruling observed further that “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 full-time employment on salary even if continues to occasionally appear in law Court.”
Acknowledging the Public prosecutor or District work as valid exception to Rule 49 court made a clear distinction stating that such salaried jobs such as a Law officer in Bank require advising, conveyance as main part of job and mere occasional appearance of such employees in courts/tribunals in few cases cannon be taken to mean that they are continuing to be in practice as advocates.
The bench emphasized upon the need for the “skills of advocacy by experience” even more than mere “knowledge of the law”. One gains knowledge through experience by regular practice in court which is elementary for holding the post of Divisional Judge or similar posts. These elementary skills cannot be acquired while in employment.
Courtesy/By: Jayant Upadhyay
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18 Apr 2019
