{"id":127670,"date":"2001-01-03T00:00:00","date_gmt":"2001-01-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/satish-kumar-sharma-vs-the-bar-council-of-himachal-on-3-january-2001"},"modified":"2019-03-06T08:06:41","modified_gmt":"2019-03-06T02:36:41","slug":"satish-kumar-sharma-vs-the-bar-council-of-himachal-on-3-january-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/satish-kumar-sharma-vs-the-bar-council-of-himachal-on-3-january-2001","title":{"rendered":"Satish Kumar Sharma vs The Bar Council Of Himachal … on 3 January, 2001"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Satish Kumar Sharma vs The Bar Council Of Himachal … on 3 January, 2001<\/div>\n
Author: S V Patil<\/div>\n
Bench: S.V.Patil, R.C.Lahoti<\/div>\n
           CASE NO.:\nAppeal (civil) 5395  of 1997\n\n\nPETITIONER:\nSATISH KUMAR SHARMA\n\n\tVs.\n\nRESPONDENT:\nTHE BAR COUNCIL OF HIMACHAL PRADESH\n\nDATE OF JUDGMENT:\t03\/01\/2001\n\nBENCH:\nS.V.Patil, R.C.Lahoti\n\n\n\n\nJUDGMENT:\n<\/pre>\n
L…..I………T…….T…….T…….T…….T…….T..J<\/p>\n
      J U D G M E N T<\/p>\n
      Shivaraj V.  Patil, J.\n<\/p>\n
      In  this\tappeal,\t the   appellant  has  assailed\t the
\nresolution  of\tthe respondent dated 12.05.1996\t withdrawing
\nhis  enrolment\tas  well  as the order\tof  the\t High  Court
\nupholding it.\n<\/p>\n
      The facts, which are considered necessary and relevant
\nfor  the  purpose  of  disposal\t of  this  appeal,  are\t the
\nfollowing:\n<\/p>\n
      After  securing  LL.B.  in 1975-76 the  appellant\t was
\nappointed as Assistant (Legal) by the Himachal Pradesh State
\nElectricity  Board  (for short the Board).  The said  post
\nwas  re-designated  as Law Officer Grade-II in 1978.   The
\nBoard,\tby its order dated 6.9.1983 allowed the appellant to
\nact  as\t an advocate of the Board and also ordered that\t the
\nexpenditure  of\t his  getting licence from the\tBar  Council
\nshall  be  met\tby  the\t  Board.   His\tapplication  seeking
\nenrolment  was\tsent  by the Secretary of the Board  to\t the
\nrespondent  on 13.10.1983.  The Secretary of the  respondent
\nby letter dated 28.3.1984 informed the Board that the Office
\nOrder  dated  6.9.1983\tof  the\t  Board\t did  not  meet\t the
\nrequirements  of  the  Rules and that the  appellant  should
\nfirst  be designated as a Law Officer.\tThe respondent\talso
\nrequested the Board to send the order of appointment and the
\nterms  of  such appointment of the appellant.  The Board  by
\norder  dated  11.6.1984\t modified the  earlier\torder  dated
\n6.9.1983  and declared the appellant as a Law Officer of the
\nBoard.\tOn 5.7.1984 another order was passed by the Board by
\nchanging  the  designation  of\tthe  post  of  Law  Officer
\nGrade-II   as  Law  Officer.   It  is,\tthereafter,   the
\nrespondent  issued a certificate of enrolment dated 9.7.1984
\nto  the\t appellant.   By  Office Order\tdated  8.5.1991\t the
\nappellant  was\tgiven ad hoc promotion to the post of  Under
\nSecretary  (Legal)- cum-Law Officer, which order also stated
\nthat  he  would\t continue to work in the Legal Cell  of\t the
\nSecretariat  of\t the  Board.  Further on  14.1.1993  he\t was
\npromoted  as  Under  Secretary (Legal)- cum-Law\t Officer  on
\nofficiating basis.\n<\/p>\n
      By  its  communication dated 13.9.1993 the  respondent
\ncalled\tupon the appellant to appear before the Committee on
\n28.9.1993  along  with all connected  documents\/evidence  in
\nregard\t to  his  enrolment  as\t  an  advocate.\t  The\tsaid
\ncommunication\tindicated  that\t in   the  meeting  held  on
\n10.7.1993  the\trespondent considered the  matter  regarding
\nenrolment  of certain Law Officers and decided to constitute
\na committee to examine the same.  Thereafter on 27.12.1993 a
\nshow cause notice was sent to the appellant requiring him to
\nexplain\t as to why his enrolment No.  HIM\/35\/1984 issued  to
\nhim  be not withdrawn.\tReply to the said show cause  notice
\nwas  to reach by 30.12.1993.  After taking extension of time
\ntwice  the  appellant  sent  a\tcommunication  on  25.2.1994
\nstating\t that  there  was no ground for\t withdrawal  of\t his
\nenrolment  reserving his right to file a detailed reply.  He
\nalso  stated  that  he would like to be\t represented  by  an
\nadvocate.\n<\/p>\n
      The  appellant  was  promoted   as  Deputy   Secretary
\n(Legal)-cum- Law Officer on ad hoc basis by the Office Order
\nof the Board dated 30.1.1995 and he was required to continue
\nto work in the Legal Cell.\n<\/p>\n
      In the meeting held on 12.5.1996 the respondent passed
\na  resolution  unanimously withdrawing the enrolment of\t the
\nappellant   with  immediate  effect   and  directed  him  to
\nsurrender   the\t enrolment  certificate\t  within   15\tdays
\ntherefrom.  The relevant and material part of the resolution
\nreads:\t–\n<\/p>\n
      ….\n<\/p>\n
      Shri  Satish  Sharma  is a permanent employee  of\t the
\nHPSEB  and  presently  he  is holding  the  post  of  Deputy
\nSecretary  in  the HPSEB and is in continuous employment  of
\nthe  HPSEB  and\t under\tRule  49 he is\tdebarred  to  be  an
\nAdvocate.    Moreover,\the  was\t  enrolled  as\tan  Advocate
\ninitially  when he was appointed as Law Officer.  Thereafter
\nhe  had\t been  getting promotions and working  as  Assistant
\nSecretary\/Deputy  Secretary  in the HPSEB.  In fact  he\t was
\nrequired  to  intimate\tthe  said fact to  the\tBar  Council
\nimmediately  on\t promotion and should have  surrendered\t the
\nlicence but he failed to do so.\n<\/p>\n
      Under these circumstances there is no justification to
\nretain\tShri Satish Sharma on the Roll of the Bar Council as
\nan Advocate.\n<\/p>\n
      It   is,\tthus,  resolved\t  that\tthe  Enrolment\t No.
\nHIM\/45\/1984 be and is hereby withdrawn with immediate effect
\nand  he\t is ordered to surrender his  Enrolment\t Certificate
\nwithin a period of 15 days.\n<\/p>\n
      It  is  this resolution, validity and  correctness  of
\nwhich  was challenged by the appellant before the High Court
\nin  the\t writ  petition contending that\t the  enrolment\t was
\nvalidly\t granted to him as he fulfilled the requirements  of
\nrelevant  provisions  of the Advocates Act, 1961;   he\talso
\npointed out that advocates, who obtained enrolment and later
\non  joined  State  Government  service\tin  the\t Prosecution
\nDepartment,  have  continued to retain their  enrolment\t and
\ndefend\tthe  State Government in the courts;  no rules\thave
\nbeen  framed  by the respondent preventing persons like\t the
\nappellant  from\t getting  enrolled, it was not open  to\t the
\nrespondent  to\twithdraw  the\tcertificate  of\t  enrolment;
\naccording  to  him  Rule 49 of the Rules framed by  the\t Bar
\nCouncil\t of India has been misconstrued and misunderstood by
\nthe  respondent.   In  short  it   was\tcontended  that\t the
\nrespondent  had\t no jurisdiction to withdraw  the  enrolment
\ncertificate granted to the appellant.  The Division Bench of
\nthe  High  Court by an elaborate and well- considered  order
\ndealing with all aspects dismissed the writ petition.  Hence
\nthe  appellant has filed this appeal assailing the order  of
\nthe  respondent\t as  well  as the order of  the\t High  Court
\naffirming it.\n<\/p>\n
      Learned  senior  counsel\tfor   the  appellant,  while
\nreiterating  the  contentions urged before the\tHigh  Court,
\nsubmitted  that the High Court failed to appreciate that the
\nsecond\tpara  of the Rule 49 carves out an exception to\t the
\nBar  created  by  Rule 49, precluding a full  time  salaried
\nemployee from practicing as an advocate;  the said exception
\nwas  subject  only to one limitation, i.e., an\texpress\t bar
\ncreated\t by Rules, made by any State Bar Council in exercise
\nof  its\t powers\t under Section 28(2)(d)\t read  with  Section
\n24(1)(e)  of the Advocates Act, 1961;  since the  respondent
\nhas not framed any rules expressly barring such Law Officers
\nfrom  being enrolled as advocates the appellant was entitled
\nfor  enrolment.\t  According to the learned counsel the\tHigh
\nCourt  also failed to note that it was not a case of refusal
\nof  enrolment to a Law Officer but it was a case wherein the
\nrespondent  was\t estopped from canceling the certificate  of
\nenrolment  issued to the appellant by the very respondent as
\nearly  as on 9.7.1984;\ttherefore, cancellation of enrolment
\nafter  almost  a  decade  and half  based  on  an  erroneous
\ninterpretation\tof  Rule 49 of the Rules of Bar\t Council  of
\nIndia, was unjust.  It was also urged that the appellant had
\nplaced\tall  the  material   before  the  respondent  before
\nobtaining  his\tenrolment  certificate\t and  there  was  no
\nconcealment  of facts on his part and that the appellant was
\ndiscriminately\ttreated.  The learned counsel added that the
\nimpugned  action  of  the respondent was unwarranted  as  it
\namounted  to  a\t punishment  of removal of the\tname  of  an
\nadvocate  from\tthe  Roll  of\tthe  State  Bar\t Council  as
\npostulated by Section 35(d) of the Act without following the
\nprocedure.\n<\/p>\n
      Per  contra,  the\t learned  counsel  representing\t the
\nrespondent  made submissions supporting the orders  impugned
\nin  this appeal.  According to him the appellant was not  at
\nall  entitled for enrolment as an advocate having regard  to
\nRule  49 of the Bar Council of India Rules in the absence of
\nany  enabling provision to a full time salaried employee for
\nenrolment  as  an advocate.  The learned  counsel  submitted
\nwhen the appellant was not at all entitled to be enrolled as
\nan  advocate the action taken by the respondent after  lapse
\nof  some  time is of no consequence and the delay in  taking
\naction\tin a case like this itself does not give  protection
\nso  as to sustain the enrolment.  He further submitted\tthat
\nthere  was  no\tdiscrimination as alleged by  the  appellant
\nlooking\t to  the nature of duties of the prosecutors in\t the
\nState Departments and the appellant.\n<\/p>\n
      We  have carefully considered the submissions made  by
\nthe  learned counsel for the parties.  We consider it useful
\nand  appropriate  to look at the relevant provisions of\t the
\nAdvocates  Act,\t 1961 (for short the Act) and of  the  Bar
\nCouncil\t of  India  Rules  (for short  the  Rules)  before
\nexamining  the\trival  contentions  on\ttheir  merits.\t The
\nprovisions are:\t –\n<\/p>\n
      Section 24.  Persons who may be admitted as advocates
\non  a  State roll.   (1) subject to the provisions of  this
\nAct,  and  the\trules  made thereunder, a  person  shall  be
\nqualified  to be admitted as an advocate on a State roll, if
\nhe fulfills the following conditions, namely<\/p>\n
      (a) ……..  (b) ……..  (c) ……..\t(d) ……..\n<\/p>\n
      (e)he  fulfills  such  other   conditions\t as  may  be
\nspecified  in the rules made by the State Bar Council  under
\nthis Chapter;\n<\/p>\n
      xxx xxx xxx<\/p>\n
      Section  28.  Power to make rules.   (1) A State Bar
\nCouncil\t may  make rules to carry out the purposes  of\tthis
\nChapter.\n<\/p>\n
      (2)  In  particular  and\t without  prejudice  to\t the
\ngenerality  of\tthe foregoing power, such rules may  provide
\nfor<\/p>\n
      (a) ……..  (b) ……..  (c) ……..\n<\/p>\n
      (d)  the\tconditions subject to which a person may  be
\nadmitted as an advocate on any such roll;\n<\/p>\n
      (3) No rules made under this Chapter shall have effect
\nunless they have been approved by the Bar Council of India.\n<\/p>\n
      xxx xxx xxx<\/p>\n
      Section  49.   General  power of the Bar\tCouncil\t of
\nIndia  to  make rules.\t (1) The Bar Council of\t India\tmay
\nmake  rules for discharging its functions under this Act and
\nin particular, such rules may prescribe.\n<\/p>\n
      (a) ……..\n<\/p>\n
      (ab)  qualifications  for membership of a Bar  Council
\nand the disqualifications for such membership;\n<\/p>\n
      (ac)  ………  (ad) ………  (ae) ………\t(af)
\n………  (ag) the class or category of persons entitled to
\nbe enrolled as advocates;\n<\/p>\n
      (ah) the conditions subject to which an advocate shall
\nhave the right to practice and the circumstances under which
\na  person  shall be deemed to practise as an advocate  in  a
\ncourt;\n<\/p>\n
      (b) ………\n<\/p>\n
      (c)   the\t standards  of\t professional  conduct\t and
\netiquette to be observed by advocates;\n<\/p>\n
      xxx xxx xxx<\/p>\n
      Chapter II of the Rules made under Section 49(1)(c) of
\nthe  Act read with the proviso thereto deals with  standards
\nof  professional conduct and etiquette.\t Preamble of Chapter
\nII reads:  –\n<\/p>\n
      An advocate shall, at all times, comport himself in a
\nmanner\tbefitting  his status as an officer of the Court,  a
\nprivileged member of the community, and a gentleman, bearing
\nin  mind that what may be lawful and moral for a person\t who
\nis  not\t a member of the Bar, or for a member of the Bar  in
\nhis  non-professional capacity may still be improper for  an
\nAdvocate.   Without  prejudice\tto  the\t generality  of\t the
\nforegoing  obligation,\tan Advocate shall fearlessly  uphold
\nthe  interests of his client, and in his conduct conform  to
\nthe  rules  hereinafter\t mentioned  both in  letter  and  in
\nspirit.\t  The rules hereinafter mentioned contain canons  of
\nconduct\t and  etiquette adopted as general guides;  yet\t the
\nspecific  mention thereof shall not be construed as a denial
\nof  the\t existence  of other equally imperative\t though\t not
\nspecifically mentioned.\n<\/p>\n
      Rule  49.\t  An  Advocate\tshall not  be  a  full-time
\nsalaried   employee  of\t any   person,\t Government,   firm,
\ncorporation  or concern, so long as he continues to practise
\nand  shall,  on taking up any such employment  intimate\t the
\nfact  to the Bar Council on whose roll his name appears, and
\nshall  thereupon cease to practise as an Advocate so long as
\nhe continues in such employment.\n<\/p>\n
      Nothing  in this rule shall apply to a Law Officer  of
\nthe  Central  Government  of  a\t  State\t or  of\t any  Public
\nCorporation  or body constituted by statute who is  entitled
\nto be enrolled under the rules of his State Bar Council made
\nunder Section 28(2)(d) read with Section 24(1)(e) of the Act
\ndespite his being a full-time salaried employee.\n<\/p>\n
      Law  Officer  for\t the purpose of this  Rule  means  a
\nperson\twho is so designated by the terms of his appointment
\nand  who, by the said terms, is required to act and\/or plead
\nin Courts on behalf of his employer.\n<\/p>\n
      In  terms of Section 24 of the Act, a person shall  be
\nqualified  to be admitted as an advocate if he satisfies the
\nprovisions of the Act, the Rules and the rules, if any, made
\nby the State Bar Council besides fulfilling other conditions
\nas  laid down in this Section.\tEven if no rules were framed
\nunder Section 28(2)(d) read with Section 24(1)(e) of the Act
\nby  a  State  Bar Council, enrolment of a  person  shall  be
\nsubject to the provisions of the Act and the Rules.  Section
\n28 has conferred rule making power on a State Bar Council to
\ncarry  out the purposes of Chapter III of the Act.  A  State
\nBar  Council  can  prescribe conditions subject to  which  a
\nperson\tmay  be\t admitted  on any such\troll  under  Section
\n28(2)(d) of the Act.  In the present case the respondent has
\nnot  framed  rules in this regard.  Under Section 49 of\t the
\nAct  the  Bar Council of India has power to make  rules\t for
\ndischarging  its functions under the Act.  Rules are  framed
\nby  the Bar Council of India exercising the powers conferred
\non  it.\t In the Preamble, extracted above, to the Rules made
\nunder  Section\t49(1)(c)  of the Act read with\tthe  proviso
\nthereto\t it  is stated that an advocate shall at  all  times
\nconduct\t himself  in a manner befitting to his status as  an
\nofficer\t of the court, a privileged member of the community,
\nand a gentleman, bearing in mind that what may be lawful and
\nmoral  for a person who is not a member of the Bar, or for a
\nmember of the Bar in his non-professional capacity may still
\nbe  improper for an advocate.  It is further stated that  an
\nadvocate shall fearlessly uphold the interest of his client,
\nand  in his conduct conform to the rules.  As is clear\tfrom
\nthe  Rules contained in Chapter II of the Rules an  advocate
\nhas  a\tduty to court, duty to the client, duty to  opponent
\nand  duty to colleagues unlike a full time salaried employee
\nwhose  duties  are specific and confined to his\t employment.
\nRule  49 has a specific purpose to serve when it states that
\nan  advocate  shall not be a full time salaried employee  of
\nany  person,  government, firm, corporation or concern.\t  As
\nalready\t noticed  above, Section 24(1)\tspecifically  states
\nthat a person in addition to satisfying other conditions has
\nalso  to  satisfy the provisions of the Act and\t Rules.\t  In
\nother  words, the Rules made by Bar Council of India are  to
\nbe  satisfied.\t Mere  non framing of rules by a  State\t Bar
\nCouncil under Section 28(2)(d) read with Section 24(1)(e) of
\nthe Act cannot dispense with obedience to Rule 49.\n<\/p>\n
      The  profession  of law is called a noble\t profession.
\nIt does not remain noble merely by calling it as such unless
\nthere is a continued, corresponding and expected performance
\nof  a  noble profession.  Its nobility has to be  preserved,
\nprotected  and\tpromoted.  An institution cannot survive  in
\nits  name  or  on  its\tpast glory  alone.   The  glory\t and
\ngreatness  of  an institution depends on its  continued\t and
\nmeaningful   performance  with\tgrace\tand  dignity.\t The
\nprofession  of law being noble and honourable one, it has to
\ncontinue  its meaningful, useful and purposeful\t performance
\ninspired by and keeping in view the high and rich traditions
\nconsistent  with  its grace, dignity, utility and  prestige.
\nHence  the  provisions of the Act and Rules made  thereunder
\ninter  alia  aimed at to achieve the same ought to be  given
\neffect\tto in their true spirit and letter to maintain clean
\nand  efficient Bar in the country to serve cause of  justice
\nwhich again is noble one.\n<\/p>\n
      This  court  in  Dr.   Haniraj L.\t  Chulani  vs.\t Bar
\nCouncil\t of  Maharashtra  &  Goa<\/a> , while  dealing  with\t the
\nvalidity  of  Rule 1 of the Maharashtra and Goa Bar  Council
\nRules  relating\t to  enrolment\t of  Advocates\t eligibility
\nconditions,  in para 20 has observed that `legal  profession
\nrequires  full\ttime attention and would not countenance  an
\nAdvocate  riding two horses or more at a time.\tThat was  a
\ncase  where a medical practitioner wanted to enroll  himself
\nas  an Advocate after obtaining a degree of Bachelor of Law.
\nRules\tframed\tby  the\t  Maharashtra  Bar  Council   denied
\nsimultaneous   practice\t of   another  profession  alongwith
\npractice  of  law.  It was contended for the appellant\tthat
\neven  though he was a practicing surgeon, if given entry  to
\nlegal profession, he would give an undertaking that he would
\nnot  practice medicine during the court hours.\tSuch a\tplea
\nwas  not accepted stating that he would be torn between\t two
\nconflicting  loyalties;\t  loyalty to his clients on the\t one
\nhand  and  loyalty to his patients on the other.  The  court
\nproceeded  to  say It is axiomatic that an advocate has\t to
\nburn  the  midnight  oil for preparing his cases  for  being
\nargued\tin  the court next day.\t Advocates face\t examination
\nevery  day when they appear in courts.\tIt is not as if that
\nafter court hours an advocate has not to put in hard work on
\nhis  study table in his chamber with or without the presence
\nof  his\t clients who may be available for consultation.\t  To
\nput  forward  his  best\t performance as an  advocate  he  is
\nrequired to give wholehearted and full-time attention to his
\nprofession.   Any flinching from such unstinted attention to
\nhis  legal profession would certainly have an impact on\t his
\nprofessional  ability and expertise.  If he is permitted  to
\nsimultaneously\tpractise as a doctor then the requirement of
\nhis  full-time attention to the legal profession is bound to
\nbe   adversely\taffected.    Consequently  however   equally
\ndignified  may\tbe  the profession of a\t doctor,  he  cannot
\nsimultaneously\tbe  permitted  to practise law\twhich  is  a
\nfull-time  occupation.\t It  is for ensuring  the  full-time
\nattention  of  legal practitioners towards their  profession
\nand  with a view to bringing out their best so that they can
\nfulfill\t their role as an officer of the court and can\tgive
\ntheir  best  in\t the  administration of\t justice,  that\t the
\nimpugned  rule\thas been enacted by the State  Legislature.
\nThe  High  Court  also has referred to and  relied  on\tthis
\njudgment.\n<\/p>\n
      With  this background we proceed to consider merits of
\nthe contentions raised by the respective parties.\n<\/p>\n
      There appeared to be difficulty for the Advocates even
\nto  take  up  teaching of law as full time  employees.\t The
\nCentral\t Government  in exercise of the powers conferred  by
\nSection\t 49-A of the Act framed the Advocates (Right To Take
\nUp  Law\t Teaching) Rules, 1979.\t As per Rule 3 of  the\tsaid
\nRules, a practicing Advocate has a right to take up teaching
\nof   law  in  any   educational\t institution  affiliated  to
\nuniversity  so long as teaching of law does not exceed three
\nhours  a day and such employment may be deemed to be a\tpart
\ntime employment.\n<\/p>\n
      Since  the terms of appointment, nature of duties\t and
\nservice\t conditions  relating  to the  appellant  have\talso
\nbearing\t in  resolving\tthe controversy,  it  is  considered
\nappropriate  to\t briefly refer to them.\t By  the  Memorandum
\ndated  24.6.1976, the appellant was appointed for the  first
\ntime  by  the Board to the post of Assistant (Legal) in\t the
\npay-scale  of  Rs.   225-15-300-20- 500 + 50  per  month  as
\nspecial\t pay.  In the said Memorandum, it is stated that the
\npost  was  temporary  and  his services were  liable  to  be
\nterminated  at\tany time without any reasons being  assigned
\nto;   his  confirmation\t in the permanent  vacancy  depended
\ninter alia on his work and conduct and he will have to serve
\nanywhere  in  the  organization of  Himachal  Pradesh  State
\nElectricity  Board.  The appellant accepting these terms  of
\nappointment,  joined  service of the Board.  By\t the  Office
\nOrder  dated  6.9.1983, the Board was pleased to  allow\t the
\nappellant,  Law Officer, Grade-II to act as Advocate of\t the
\nBoard  in the existing scale of Rs.  700-1200\/-.  The  Board
\nwas  further  pleased  to  order that  the  expenditure\t for
\ngetting\t enrolment  as\tan Advocate shall be  borne  by\t the
\nBoard.\t In  response  to  the\t application  made  for\t the
\nenrolment  of the appellant as an Advocate, the Secretary of
\nthe  respondent\t by  a letter dated 28.3.1984  informed\t the
\nappellant  that the Office Order dated 6.9.1983 of the Board
\ndid not meet the requirements of the Rules and that he first
\nbe designated as Law Officer.  Accordingly the Board, by its
\norder  dated  11.6.1984\t modifying its earlier\torder  dated
\n6.9.1983,  declared him as Law Officer of the Board in the
\nexisting  pay-scale.   The  Board passed one more  order  on
\n5.7.1984  changing  the\t designation  of the  post  of\tLaw
\nOfficer\t (Grade-II) as Law Officer with immediate  effect
\nand  appointed the appellant as Law Officer in the  existing
\npay  scale.   In  the said order it is also stated  that  by
\nvirtue\tof  the\t said  appointment the\tappellant  shall  be
\nrequired  to act and plead in any court of law on behalf  of
\nthe  Board.   It  is  only  thereafter,\t the  appellant\t was
\nenrolled  as an advocate on 9.7.1984 by the respondent.\t  By
\nthe  Office  Order dated 8.5.1991 the Board promoted him  as
\nUnder Secretary (Law)-cum-Law Officer in the given pay-scale
\npurely\ton ad hoc basis making it clear that the said ad hoc
\npromotion  would  not confer any right on the  appellant  to
\nclaim seniority in that Grade.\tIn the said order it is also
\nstated\tthat  he will continue to work in the Legal Cell  of
\nthe  Secretariat of the Board.\tHe was promoted on 14.1.1993
\non  the\t recommendation\t of Class-I  Departmental  Promotion
\nCommittee   on\tofficiating  basis  in\tthe   pay-scale\t  of
\nRs.3000-4500 plus Rs.400 as special pay per month indicating
\nthat  he would continue to work in the same Legal Cell.\t  By
\norder dated 30.1.1995 the Board again promoted him as Deputy
\nSecretary   (Law)-cum-Law  Officer  in\t the  pay-scale\t  of
\nRs.3700-5000  plus Rs.400 as special pay per month purely on
\nad hoc basis with the other conditions remaining the same.\n<\/p>\n
      This Court on 10.8.2000 passed the following order:-\n<\/p>\n
      During  the course of hearing, a question arose as to
\nwhether the appellant, while serving on full time basis with
\nHimachal  Pradesh State Electricity Board, is confining\t his
\nwork  only to acting as an Advocate for and on behalf of the
\nBoard, including appearances in the Court, or has some other
\nduties\talso  assigned\tto  him in his\tcapacity  as  Deputy
\nSecretary-cum-Law Officer.  Mr.\t V.A.  Bobde, learned senior
\ncounsel\t appearing  on behalf of the appellant submits\tthat
\nsince  this issue never arose before, he shall have to\tseek
\ninstructions  and file an appropriate affidavit supported by
\nrelevant  documents.   Four weeks time, as prayed  for,\t is
\ngranted for the purpose.  An advance copy shall be furnished
\nto  the\t learned counsel opposite who will have\t four  weeks
\nthereafter to file response, if any.\n<\/p>\n
      List after nine weeks.\n<\/p>\n
      Pursuant\tto  the said Order, the appellant has  filed
\nthe  affidavit\ton 12.09.2000.\tThe affidavit shows that  he
\nwas  further promoted as Additional Secretary (Law).  In the
\naffidavit he has stated that his duties with the Board right
\nfrom  Law  Officer to Additional Secretary (Law)  have\tbeen
\nexclusively  those of an Advocate and he had been personally
\nappearing  before various courts.  It is also stated that he
\nwas\/is heading Legal Cell\/Law Section, the duties in respect
\nof  which  were\t stipulated in the  Regulation\tof  Business
\nissued\tby the Board on April 4, 1974 which were amended  in
\nFebruary,  2000.   As far as the Legal Cell  was  concerned,
\nthey  remained the same.  Regulation of Business relating to
\nC-Legal are as follows:-\n<\/p>\n
      25.   Every  wing\t of  the Board\tshall  consult\tLaw
\nSection, whenever it is proposed to:-\n<\/p>\n
      (i)  issue  a  statutory regulation,  notification  or
\norder, or<\/p>\n
      (ii) sanction under a statutory power the issue of any
\nregulation,  by law, notification or order by a\t subordinate
\nauthority;  or<\/p>\n
      (iii)  submit  to\t Government   any  draft   statutory
\nregulation,  notification  or order for issue by them;\t the
\ndraft  shall be referred to the Law Section for opinion\t and
\nadvice.\n<\/p>\n
      26.(1) All Sections shall consult the Legal Section on
\n:-\n<\/p>\n
      (a)  any\tgeneral legal principles arising out of\t any
\ncase and;\n<\/p>\n
      (b)  the\tconstruction of statutes, Arts,\t Regulation,
\nStatutory Orders and notifications etc.\t etc.<\/p>\n
      (c)  the institution or withdrawal of any\t prosecution
\nor   other   legal\/quasi     legal   proceedings   including
\narbitration,  taxation proceedings, engagement of  counsels,
\ntheir fee, etc.\t etc.<\/p>\n
      (d)  all\tdocuments having legal implications,  except
\nroutine matters, may only be accepted after legal scrutiny.\n<\/p>\n
      (2)  All\tsuch references shall be accompanied  by  an
\naccurate statement of the facts of the case and the point or
\npoints on which the advice of the Legal Section is desired.\n<\/p>\n
      Looking  to  the various appointment\/promotion  orders
\nissued\tby  the\t Board to the appellant\t and  Regulation  of
\nBusiness relating to Legal Cell of the Board aforementioned,
\nwe can gather that :-\n<\/p>\n
      (1) the appellant was a full time salaried employee at
\nthe time of his enrolment as an Advocate and continues to be
\nso getting fixed scales of pay;\n<\/p>\n
      (2)  he  is  governed  by the  conditions\t of  service
\napplicable   to\t the  employees\t of  the   Board   including
\ndisciplinary  proceedings.   When asked by us,\tthe  learned
\ncounsel for the appellant also confirmed the same;\n<\/p>\n
      (3) he joined the services of the Board as a temporary
\nAssistant (Legal) and continues to head the Legal Cell after
\npromotions, a wing in the Secretariat of the Board;\n<\/p>\n
      (4)  his duties were\/are not exclusively or mostly  to
\nact or plead in courts;\t and<\/p>\n
      (5)  promotions were given from time to time in higher
\npay-  scales  as is done in case of other employees  of\t the
\nBoard  on  the\tbasis  of  recommendation  of\tDepartmental
\nPromotion Committee.\n<\/p>\n
      On a proper and careful analysis, having regard to the
\nplain  language and clear terms of Rule 49 extracted  above,
\nit is clear that:  –\n<\/p>\n
      (i)  the\tmain  and  opening  paragraph  of  the\tRule
\nprohibits  or  bars  an\t advocate from\tbeing  a  full\ttime
\nsalaried   employee  of\t any   person,\t Government,   firm,
\ncorporation  or concern so long as he continues to  practice
\nand  an\t obligation is cast on an Advocate who takes up\t any
\nsuch  employment  to intimate the fact to the concerned\t Bar
\nCouncil\t and  he  shall\t cease to practice  so\tlong  as  he
\ncontinues in such employment;\n<\/p>\n
      (ii)  para  2  of\t the Rule is in\t the  nature  of  an
\nexception  to the general Rule contained in main and opening
\nparagraph  of  it.   The bar created in para 1 will  not  be
\napplicable  to\tLaw Officers of the Central Government or  a
\nState  or  any public corporation or body constituted  by  a
\nstatute,  if  they are given entitlement under the Rules  of
\ntheir  State  Bar  Council.  To put it in  other  way,\tthis
\nprovision  is an enabling provision.  If in the Rules of any
\nState  Bar  Council,  a\t provision  is\tmade  entitling\t Law
\nOfficers  of the Government or authorities mentioned  above,
\nthe  bar  contained in Rule 49 shall not apply to  such\t Law
\nOfficers despite they being full time salaried employees;\n<\/p>\n
      (iii)  not every Law Officer but only a person who  is
\ndesignated  as\tLaw Officer by the terms of his\t appointment
\nand who by the said terms is required to act and\/or plead in
\ncourts\ton  behalf of his employer can avail the benefit  of
\nthe exception contained in para 2 of Rule 49.\n<\/p>\n
      It  is an admitted position that no rules were  framed
\nby  the\t respondent entitling a Law Officer appointed  as  a
\nfull  time  salaried employee coming within the\t meaning  of
\npara  3\t of  Rule  49 to enroll as  an\tAdvocate.   Such  an
\nenrolment  has\tto  come from the rules made  under  Section
\n28(2)(d)  read\twith Section 24(1)(e) of the Act.  Hence  it
\nnecessarily follows that if there is no rule in this regard,
\nthere  is  no  entitlement.  In the absence  of\t express  or
\npositive  rule, the appellant could not fit in the exception
\nand the bar contained in the first paragraph of Rule 49, was
\nclearly\t attracted as rightly held by the High Court.  Added
\nto  this,  in  the light of terms  of  appointment\/promotion
\norders\tissued\tby the Board to the appellant, it  is  clear
\nthat the first appointment of the appellant was as Assistant
\n(Legal).    Subsequent\t promotions   as   Under   Secretary
\n(Legal)-cum-Law\t Officer,  Deputy Secretary  (Legal)-cum-Law
\nOfficer\t and  Additional  Secretary   (Law)  show  that\t the
\nappellant  was\tnot designated as Law  Officer.\t  Similarly,
\nthere  is no indication in any of the  appointment\/promotion
\norders\tissued to the appellant that he was to act or  plead
\nin  the\t courts of law on behalf of the Board except in\t the
\norder  dated  5.7.1984.\t  At any rate from these  orders  it
\ncannot\tbe  said that he was\/is required to act or plead  in
\ncourts on behalf of the employer mainly or exclusively so as
\nto  come within the meaning of Law Officer for the purpose
\nof  Rule 49.  It appears the modified orders dated 11.6.1984
\nand  5.7.1984  were  issued  by the Board in  order  to\t get
\nenrolment of the appellant as an advocate on the roll of the
\nrespondent.  None of the appointment\/promotion orders issued
\nto  the appellant indicate that his duties were\t exclusively
\nto  act\t or plead in courts on behalf of the Board  as\tLaw
\nOfficer.   These orders clearly show that the appellant was
\nrequired to work in the Legal Cell of the Secretariat of the
\nBoard;\t was given different pay scales;  rules of seniority
\nwere  applicable;  promotions were given to him on the basis
\nof  the\t recommendations  of   the  Departmental   Promotion
\nCommittee;   was amenable to disciplinary proceedings,\tetc.
\nFurther\t looking  to the nature of duties of Legal  Cell  as
\nstated\tin the regulation of business of the Board extracted
\nabove,\tthe  appellant being a full time  salaried  employee
\nhad\/has\t to  attend  to so many duties which  appear  to  be
\nsubstantial  and  pre-dominant.\t In short and  substance  we
\nfind that the appellant was\/is a full time salaried employee
\nand  his work was not mainly or exclusively to act or  plead
\nin court.  Further there may be various challenges in courts
\nof  law assailing or relating to the decisions\/actions taken
\nby  the\t appellant  himself such as challenge  to  issue  of
\nstatutory  regulation, notification or order;\tconstruction
\nof statutory regulation, statutory orders and notifications,
\nthe  institution\/withdrawal  of\t any  prosecution  or  other
\nlegal\/quasi legal proceedings etc.  In a given situation the
\nappellant  may\tbe amenable to disciplinary jurisdiction  of
\nhis  employer  and \/ or to the disciplinary jurisdiction  of
\nthe  Bar  Council.   There could be conflict of\t duties\t and
\ninterests.   In such an event, the appellant would be in  an
\nembarrassing position to plead and conduct a case in a court
\nof  law.   Moreover,  mere occasional  appearances  in\tsome
\ncourts\ton  behalf  of\tthe Board even if they\tbe,  in\t our
\nopinion, could not bring the appellant within the meaning of
\nLaw  Officer in terms of para 3 of Rule 49.  The  decision
\nin  Sushma Suri vs.  Govt.  of National Capital Territory of
\nDelhi  and Another<\/a> , in our view, does not advance the\tcase
\nof  the\t appellant.   That  was\t a  case  where\t meaning  of
\nexpression  from  the  Bar in relation to  appointment\tas
\nDistrict Judge requiring not less than seven years standing
\nas  an Advocate or a pleader came up for consideration.\t The
\nword  Advocate in Article 233(2) was held to include a Law
\nOfficer\t of Central or State Government, public\t corporation
\nor  a  body corporate who is enrolled as an  Advocate  under
\nexception  to  Rule 49 of Bar Council of India Rules and  is
\npracticing  before courts for his employee.  Para 10 of\t the
\nsaid  judgment reads :- Under Rule 49 of the Bar Council of
\nIndia  Rules, an advocate shall not be a full-time  employee
\nof  any person, Government, firm, corporation or concern and
\non  taking  up such employment, shall intimate such fact  to
\nthe  Bar  Council concerned and shall cease to\tpractise  as
\nlong  as he is in such employment.  However, an exception is
\nmade  in  such cases of law officers of the  Government\t and
\ncorporate  bodies  despite  his being a\t full-time  salaried
\nemployee  if such law officer is required to act or plead in
\ncourt  on  behalf of others.  It is only to those  who\tfall
\ninto  other categories of employment that the bar under Rule
\n49 would apply.\t An advocate employed by the Government or a
\nbody  corporate as its law officer even on terms of  payment
\nof salary would not cease to be an advocate in terms of Rule
\n49 if the condition is that such advocate is required to act
\nor  plead  in courts on behalf of the employer.\t  The  test,
\ntherefore, is not whether such person is engaged on terms of
\nsalary\tor  by\tpayment of remuneration, but whether  he  is
\nengaged\t to act or plead on its behalf in a court of law  as
\nan advocate.  In that event the terms of engagement will not
\nmatter\tat  all.  What is of essence is as to what such\t law
\nofficer\t engaged by the Government does\t whether he acts or
\npleads\tin court on behalf of his employer or otherwise.  If
\nhe is not acting or pleading on behalf of his employer, then
\nhe ceases to be an advocate.  If the terms of engagement are
\nsuch  that he does not have to act or plead, but does  other
\nkinds  of  work,  then\the becomes a mere  employee  of\t the
\nGovernment  or\tthe  body  corporate.\tTherefore,  the\t Bar
\nCouncil of India has understood the expression advocate as
\none   who  is  actually\t  practicing  before  courts   which
\nexpression  would  include even those who are  law  officers
\nappointed  as  such  by the Government or  body\t corporate.
\n[emphasis supplied]<\/p>\n
      As  stated  in  the above para the test  indicated  is
\nwhether\t a  person is engaged to act or plead in a court  of
\nlaw as an Advocate and not whether such person is engaged on
\nterms  of salary or payment by remuneration.  The essence is
\nas to what such Law Officer engaged by the Government does.\n<\/p>\n
      In  the present case on facts narrated above  relating
\nto  his employment as well as in the absence of rule made by
\nthe  respondent\t entitling  a Law Officer to  enroll  as  an
\nAdvocate  despite  being a full time salaried employee,\t the
\nappellant  was\tnot  entitled to enrolment as  an  advocate.
\nHence,\t the   appellant   cannot   take  benefit   of\t the
\naforementioned judgment.\n<\/p>\n
      The  argument  of the learned senior counsel  for\t the
\nappellant  was\tthat what is not prohibited may be taken  as
\npermitted  and when the appellant satisfied the requirements
\nof Section 24, he was entitled for enrolment.  This argument
\noverlooks  a  positive requirement as already  stated  above
\ncontained in para 2 of Rule 49 that unless a concerned State
\nBar  Council  has  framed rules entitling  Law\tOfficers  to
\nenroll\t as  Advocates\teven   though  they  are   full-time
\nemployees,   they  are\tnot   entitled\tto  enrolment.\t The
\ncontention  that  the  respondent could not  have  cancelled
\nenrolment  of  the appellant almost after a decade and\thalf
\nand  that  the respondent was estopped from doing so on\t the
\nprinciple of promissory estoppel, did not impress us for the
\nsimple\treason that the appellant suffered threshold bar and
\nwas  not  at all eligible to be enrolled as an Advocate\t and
\nhis  enrolment itself was clearly contrary to Rule 49 of the
\nRules in the light of the facts stated above.  Hence neither
\nthe  principles of equity nor promissory estoppel will\tcome
\nto  the\t aid  of  the appellant.   Similarly,  there  is  no
\nsubstance  in  the argument of the learned counsel  for\t the
\nappellant that removal of the name of the appellant from the
\nroll of the State Bar Council amounted to a punishment under
\nSection 35(d) of the Act without following procedure.  It is
\nclear  from the facts of the case that action was not  taken
\nagainst\t the  appellant\t on  the  ground  of  misconduct  by
\ninitiating  any disciplinary proceedings.  But in this\tcase
\nthe  very  enrolment of the appellant as an advocate  itself
\nwas  contrary  to  law and he was not at  all  entitled\t for
\nenrolment.   By\t cancellation  or  withdrawal  of  enrolment
\nthings\twere  only  set right and the mistake  committed  on
\nmisunderstanding was corrected.\n<\/p>\n
      We  find\tno  merit  in  the  ground  urged  that\t the
\nappellant  was discriminated against the prosecutors and the
\nGovernment pleaders.  The duties, nature of work and service
\nconditions  of\tthe appellant, details of which are  already
\ngiven above, are substantially different from the duties and
\nnature\tof  work  of  prosecutors  and\tGovernment  pleaders
\nparticularly  in  relation to acting and pleading in  court.
\nThus  the appellant stood on a different footing.  The\tHigh
\nCourt  in paragraphs 24-26 has dealt with this aspect of the
\ncase  and rightly rejected the argument based on the  ground
\nof discrimination.\n<\/p>\n
      The  last\t and alternative submission of\tthe  learned
\ncounsel\t for  the appellant was that in case  the  appellant
\ngives  up his full time employment or ceases to be  employee
\nof  the Board, he may be allowed to practice maintaining his
\nseniority  as an advocate from the date of his enrolment  on
\nthe  rolls of the respondent;  if the enrolment is cancelled
\nor  withdrawn  he would lose the seniority for no  fault  of
\nhim.   There  is  a difficulty in accepting  this  argument.
\nWhen  the  appellant was not entitled for enrolment and\t his
\nenrolment  itself  was\topposed to law, such  enrolment\t was
\nnon-est.  Hence the question of maintaining his seniority on
\nthe  rolls  of the respondent does not arise.\tHowever,  we
\nmake  it clear that in case the appellant resigns or  ceases
\nto  be a full time employee of the Board, it is open to\t him
\nif  so desired to apply afresh for enrolment as an advocate.
\nThis  order  does  not\tstand in the way  of  the  appellant
\nseeking enrolment if he is otherwise eligible and entitled.\n<\/p>\n
      In  the light of the facts stated and discussions made
\nabove, we do not find any merit in this appeal.\t Hence it is
\ndismissed.  No cost.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Satish Kumar Sharma vs The Bar Council Of Himachal … on 3 January, 2001 Author: S V Patil Bench: S.V.Patil, R.C.Lahoti CASE NO.: Appeal (civil) 5395 of 1997 PETITIONER: SATISH KUMAR SHARMA Vs. RESPONDENT: THE BAR COUNCIL OF HIMACHAL PRADESH DATE OF JUDGMENT: 03\/01\/2001 BENCH: S.V.Patil, R.C.Lahoti JUDGMENT: L…..I………T…….T…….T…….T…….T…….T..J J U […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-127670","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSatish Kumar Sharma vs The Bar Council Of Himachal ... on 3 January, 2001 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/satish-kumar-sharma-vs-the-bar-council-of-himachal-on-3-january-2001\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Satish Kumar Sharma vs The Bar Council Of Himachal ... on 3 January, 2001 - 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