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W.P. (C) No. 8 of 2017

IN THE HIGH COURT OF MANIPUR

AT IMPHAL

W.P. (C) No. 8 of 2017

1. Mr. Viscount Ahongsangbam, aged about 38 years, S/o

Jagatchandra Singh Ahongsangbam, a resident of

Thangmeiband Yumnam Leikai, P.O. Lamphel and P.S.

Imphal.

2. Mr. N. Keertichand Singh, aged about 37 years, S/o N.

Ranjit Singh, a resident of Thangmeiband Hijam Leikai

Opposite Chingakham Lampak Community Hall, Imphal

West District, Manipur, P.O. Lamphel, P.S. Lamphel,

Imphal West District, Manipur.

... PETITIONERS

- Versus -

1. The State of Manipur, represented by the

Commissioner/Secretary (DP), Government of

Manipur.

2. The Commissioner/Secretary (Finance), Govt. of

Manipur, Secretariat, Imphal.

3. The Secretary (Law), Government of Manipur,

Secretariat, Imphal.

4. The Manipur Public Service Commission through

the Secretary, Imphal.

5. The Bar Council of Manipur through the Secretary,

Imphal.

6. Shri Thingam Sukumar Singh, aged about 37

years, S/o Thingam Hemchandra Singh, a resident

of Naran Konjin Mayai Leikai, P.O. & P.S. Lilong,

Imphal West District, Manipur.

7. Shri Niranjan Sanasam, aged about 45 years, S/o

Sanasam Biramani Singh, a resident of Singjamei

Sanasam Leikai, P.O. Imphal & P.S. Singjamei,

Imphal West District, Manipur.

... RESPONDENTS

B E F O R E HON’BLE MR. JUSTICE KH. NOBIN SINGH

For the Petitioners : Shri A. Bimol, Advocate.

For the Respondents : Shri R.S. Reisang, Sr. G.A.,

Shri H.S. Paonam, Sr. Advocate,

Shri B.P. Sahu, Sr. Advocate,

Shri S. Biswajit, Advocate,

FR/NFRFR/NFRFR/NFRFR/NFR

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W.P. (C) No. 8 of 2017

Shri Kh. Tarunkumar, Advocate,

Ms. Th. Babita, Advocate &

Shri R.K. Deepak, Advocate.

Date of Hearing : 18-05-017

Date of Judgment & Order : 05-06-2017 [24-05-2017 to

04-06-2017 being summer vacation]

JUDGMENT AND ORDER

[1] Heard Shri A. Bimol, learned counsel appearing for

the petitioners; Shri R.S. Reisang, learned Senior Government

Advocate appearing for the respondent Nos. 1 and 2; Shri S. Biswajit,

learned counsel appearing for the respondent No. 3; Shri R.K.

Deepak, learned counsel appearing for the respondent No. 4; Shri

B.P. Sahu, learned Senior Advocate and Ms. Th. Babita, learned

counsels appearing for the respondent No. 6; Shri Kh. Tarunkumar,

learned counsel appearing for the respondent No. 7, and Shri H.S.

Paonam, learned Senior Advocate appearing for the respondent

No. 5.

[2] By the instant writ petition, the petitioners have prayed for

issuing a writ of Certiorari for quashing and setting aside the

Notification dated 28-04-2016 issued by the Manipur Public Service

Commission (hereinafter referred to as “the MPSC”) in respect of the

private respondent Nos. 6 and 7 only and the Government order

dated 21-12-2016 appointing them as the Additional Government

Advocate (High Court) and also for issuing a writ of Mandamus

directing the State respondents to appoint the petitioners as the

Additional Government Advocate (High Court) on the basis of the

recommendation/merit list dated 28-04-2016 of the MPSC.

[3.1] The Government of Manipur issued a notification dated

20-10-2015 notifying the rules called “The Department of Law &

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W.P. (C) No. 8 of 2017

Legislative Affairs, Manipur [Additional Government Advocate (High

Court)], Recruitment Rules, 2015 (hereinafter referred to as “the

Recruitment Rules, 2015”) whereby the method of recruitment for

appointment of 4 (four) Additional Government Advocate (High Court)

was by direct recruitment and the essential and desirable

qualifications are as under:-

“Essential:

1. Bachelor’s degree in Law of a recognized

University.

2. As Advocate not less than 10 (ten) years in

practice.

Desirable:

1. Practicing Advocate in the High Court with

experienced in service matters, Civil and

Revenue.

2. Knowledge of Manipuri and Hindi.”

[3.2] The petitioner Nos. 1 and 2 having obtained LL.B. Degree

from the Guwahati University and the Bangalore University in the

year 2005 and 2002 respectively, enrolled themselves as Advocates

and started practising as Advocates in the High Courts, Sub-ordinate

Courts and the Supreme Court.

[3.3] The MPSC issued an Advertisement dated 02-12-2015

inviting applications from amongst the eligible candidates for

appointment to the said 4 (four) posts of Additional Government

Advocate (High Court) in the Law & Legislative Affairs, Government

of Manipur. The petitioners being eligible for appointment to the said

posts of Additional Government Advocate (High Court), submitted

their applications within the time prescribed therein. The written

examination was held on 10-01-2016 and the result thereof was

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W.P. (C) No. 8 of 2017

declared on 12-04-2016 and thereafter, the Personality Test/Interview

was held on 28-04-2016 and the result thereof was declared on the

same day vide Notification dated 28-04-2016 issued by the MPSC.

As per the said Notification dated 28-04-2016, the names of 12

(twelve) candidates including that of the petitioners and the private

respondent Nos. 6 and 7, were found to have figured in the merit list

and the names of the petitioners were shown at Sl. No. 6 and 7 while

that of the private respondent Nos. 6 and 7 at Sl. No. 4 and 5. The

recommendation for appointment to the said 4 (four) posts of

Additional Government Advocate (High Court) was to be made by the

MPSC to the Government on the basis of this merit list.

[3.4] On the recommendation of the MPSC vide its letter dated

28-04-2016, the Government of Manipur issued an order dated

10-05-2016 appointing 4 (four) candidates at Sl. No. 1, 2 and

3 against the un-reserved posts and the candidate at Sl. No. 8

against the post reserved for ST candidates. After the said four

candidates having been appointed against the said four vacant posts

of Additional Government Advocate (High Court), Manipur on

10-05-2016, the State Government in supersession of all previous

rules, notified another rule called “the Department of Law &

Legislative Affairs, Manipur [Additional Government Advocate (High

Court)] Recruitment Rules, 2016 (hereinafter referred to as “the

Recruitment Rules, 2016”) whereby the number of posts of

Additional Government Advocate (High Court) was increased to 6

(six) including 4 (four) posts for which the process of recruitment was

already over, while the method of recruitment and the essential

qualifications remained the same as that of the Recruitment Rules,

2015.

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W.P. (C) No. 8 of 2017

[3.5] On the availability of two more posts of Additional

Government Advocate (High Court) as stated hereinabove, the

Secretary (Law), Govt. of Manipur prepared a Memorandum for

Cabinet proposing for lifting of ban on direct recruitment and for filling

up the said two posts of Additional Government Advocate (High

Court) from the merit list recommended by the MPSC vide its letter

dated 28-04-2016 by way of exemption of consultation with the

MPSC, which was approved by the Cabinet on 28-11-2016 and

accordingly, the Government of Manipur issued an order dated

21-12-2016 appointing the private respondent Nos. 6 & 7 as the

Additional Government Advocate (High Court) against the said two

posts. Being aggrieved by the Notification dated 28-04-2016 issued

by the MPSC only in respect of the private respondent Nos. 6 & 7

and the Government order dated 21-12-2016, the instant writ petition

has been filed by the petitioners on the inter-alia grounds that the

private respondent Nos. 6 and 7 were ineligible and unqualified for

appointment as the Additional Government Advocate (High Court)

under the Recruitment Rules for the reason that they had never

practised as Advocates for 10 (ten) years; that in view of the

provisions of Rule 49 of the Bar Council of India Rules (hereinafter

referred to as “the BCI Rules”), the private respondent Nos. 6 and 7

have ceased to practice as Advocates after they having been

appointed as full-time salaried employees of the State Government;

that the recommendation of the private respondent Nos. 6 and 7 by

the MPSC and their appointment as the Additional Government

Advocate (High Court) thereafter are ultra vires of the provisions of

the Recruitment Rules, 2015 or for that matter, the Recruitment

Rules, 2016 and that since their recommendation and appointment

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W.P. (C) No. 8 of 2017

as the Additional Government Advocate (High Court) are illegal, the

same deserve to be quashed and set aside. The act of the official

respondents in recommending and appointing the unqualified and

ineligible candidates, i.e., the private respondent Nos. 6 & 7 by

ignoring the case of the petitioners who are qualified and eligible for

appointment, are very much arbitrary and illegal.

[4] The writ petition is vehemently contested by almost

all the respondents including the State Government, by way of

filing affidavits-in-opposition, raising the issue as regards the

maintainability of the writ petition on the ground that the petitioners

have no locus to challenge the impugned Notification and the

Government order. The sum and substance of their affidavits-in-

opposition as regards the merit of the case which are all common,

are that the private respondent Nos. 6 & 7 were engaged as the OSD

(Legal) purely on contract basis on payment of monthly consolidated

remuneration and as per the terms of their engagement, they were

engaged for legal works and litigations. They were allowed to conduct

cases and practise as Advocates, as their engagement as the OSD

(Legal) did not bar them from their continuing practice and therefore,

their engagement on contract basis could not be treated as full-time

salaried employees of the State Government. Their engagement did

not attract or offend the provisions of Rule 49 of the BCI Rules. The

petitioners being well aware of the details of the private respondents,

never raised an issue as regards their eligibility when the Notification

dated 28-04-2016 was issued and acted upon by the State

Government. In the aforesaid merit list, the petitioners’ names were

found below them and as per the policy decision taken by the State

Government, they were given appointment and they had already

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W.P. (C) No. 8 of 2017

joined their service. Since the petitioners having participated in the

selection process without any demur, they are estopped from

complaining that the selection process and the appointment given to

them, were not in accordance with law.

[5] From the aforesaid pleadings, two issues have arisen for

consideration by this court:

(a) Whether, in the facts and circumstances of the case, the

writ petition is maintainable or not?

(b) Whether, having regard to the fact that the private

respondent Nos. 6 & 7 were engaged as the OSD

(Legal) on contract basis on payment of monthly

remuneration, the provisions of Rule 49 of the BCI Rules

would be attracted to their cases?

[6] Since a preliminary objection as regards the maintainability

of the writ petition having been raised by the learned counsels

appearing for the respondents, this court deems fit and appropriate to

deal with it before going into the merit of the case. The preliminary

objection is based on three points. Firstly, relying upon the decisions

in K.D. Sharma Vs. SAIL, reported in (2008)12 SCC 481; Dalip

Singh Vs. State of UP, reported in (2010) 2 SCC 114; Abhyuda

Sanstha Vs. Union of India, reported in (2011) 6 SCC 145 and

Kishore Samrite Vs. State of UP, reported in (2013) 2 SCC 398, it

has been submitted by the learned counsel appearing for the private

respondent No. 7 that the petitioners have not come before this court

with clean hands by making false statement as regards their status

as OBC candidates and their petition deserves dismissal. There can

be no any dispute about the law being laid down by the Hon’ble

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W.P. (C) No. 8 of 2017

Supreme Court in the aforesaid cases but since the subject-matter in

issue has nothing to do with the question as to whether the

petitioners belong to OBC category or not, the writ petition cannot be

dismissed on this ground alone. Secondly, the learned counsel

appearing for the private respondent No. 6 has submitted that since

the merit list itself is being challenged, all the candidates whose

names are there in the merit list, ought to have been impleaded as

party respondents and that failing to do so on the part of the

petitioners has rendered their writ petition being not maintainable.

Further she submits that the writ petition suffers from non-joinder of

the concerned Bar Council as a necessary party because the name

of an advocate can be either removed or suspended by an order of

the concerned Bar Council. In support of her contention, she has

relied upon the decisions rendered by the Hon’ble Supreme Court in

Km. Rashmi Mishra Vs. M.P. Public Service Commission & ors.,

reported in (2006) 12 SCC 724 and K.H. Siraj Vs. High Court of

Kerala, reported in (2006) 6 SCC 395. The facts of the present case

are not similar to that of the said cases and therefore, the said

decisions will not apply to the facts and circumstances of the present

case. There is no relief prayed for against the them and moreover,

any order or judgment to be delivered by this court in the present

case, will have no bearing at all on the interest of the candidates who

have not been impleaded as party respondents or for that matter, the

concerned Bar Council. In other words, their interests will not be

affected at all and in particular, the interest of the candidates who

have already been appointed as the Additional Government Advocate

(High Court) pursuant to the merit list. The third point which all the

counsels appearing for the respondents except the learned counsel

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W.P. (C) No. 8 of 2017

appearing for the Bar Council of Manipur have contended, is that the

petitioners have no locus standi to question and challenge the

Notification dated 28-04-2016 and the Government order dated 10-

05-2016 for the reason that they having participated in the process of

selection, they cannot be permitted to question the same. To

substantiate their contentions, the learned counsels appearing for the

respondents have relied upon the various decisions rendered by the

Honble Supreme Court. So far as Shri Kh. Tarunkumar, the learned

counsel appearing for the respondent No. 7 is concerned, he has

placed reliance in Trivedi Himanshu Ghanshyambhai Vs.

Ahmedabad Municipal Corporation, reported in (2007) 8 SCC 644

wherein the question was whether the appellant therein fulfilled the

requirement of ten years’ experience on the administrative side for

appointment to the post of Assistant Manager, the Hon’ble Supreme

Court held:

“16. As noted hereinearlier, Respondents 2 and 3 who had

filed the writ petition before the High Court, challenging

the appointment of the appellant were themselves

unsuccessful in the examination, even though they

claimed that they had passed the written examination

but failed in the interview. Since the names of

Respondents 2 and 3, who were the writ petitioners

before the High Court, did not figure in the merit list, in

our view, it was not open to them to challenge the said

selection list and the appointment of the appellant before

the High Court.

17. It is not in dispute that Respondents 2 and 3 as well as

the appellant were all found eligible, in the light of the

marks obtained in the written test, to be called for the

oral interview. Up to this stage, there was no doubt.

Respondents 2 and 3 and the appellant appeared before

the Committee constituted by the Corporation for

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conducting the oral interview. Respondents 2 and 3

could not clear the oral interview and were not selected

whereas the appellant was found successful and

accordingly, selected. Therefore, there cannot be any

dispute that only because Respondents 2 and 3 could

not get selected and named in the final merit list, as a

result of their combined performance, both in the written

test as well as in the oral interview, they challenged the

appointment of the appellant and other selected

candidates by moving the writ petition. Such being the

position, we are of the view that the High Court was not

justified in exercising its power under Article 226 of the

Constitution by granting relief to the writ petitioners, who

are now Respondents 2 and 3 in this appeal. As we are

of the opinion that the appellant did possess the

administrative experience of ten years required for

selection to the post of Assistant Manager in view of the

varied nature of work performed by him while working as

an x-ray technician, we do not find any reason to take a

view different from the one taken by the Corporation and

the Selection Committee. Therefore, we are of the view

that it was not open to Respondents 2 and 3 to

challenge the appointment of the appellant and other

selected candidates, as they were themselves

unsuccessful in the test. In this connection, reliance can

be placed on a decision of this Court in Madan Lal v.

State of J&K.

18. Accordingly, we are of the view that the High Court was

neither justified in interfering with the appointment of the

appellant by holding that he did not possess the

requisite administrative experience of ten years while

working as an x-ray technician nor was it open to the

High Court to entertain the writ petition challenging the

appointment of the appellant and other selected

candidates at the instance of the unsuccessful

candidates.”

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In Dhananjay Malik & ors. Vs. State of Utttaranchal &

ors., reported in (2008) 4 SCC 171 wherein in respect of the

appointment of Physical Education Teacher, the unsuccessful

candidates in the interview challenged the selected candidates on the

inter-alia ground that the advertisement and selection were not based

in accordance with the rules, the Hon’ble Supreme Court held:

“7. It is not disputed that the respondent-writ petitioners

herein participated in the process of selection knowing

fully well that the educational qualification was clearly

indicated in the advertisement itself as BPE or graduate

with diploma in Physical Education. Having

unsuccessfully participated in the process of selection

without any demur they are estopped from challenging

the selection criterion inter alia that the advertisement

and selection with regard to requisite educational

qualifications were contrary to the Rules.

8. In Madan Lal v. State of J&K this Court pointed out that

when the petitioners appeared at the oral interview

conducted by the members concerned of the

Commission who interviewed the petitioners as well as

the contesting respondents concerned, the petitioners

took a chance to get themselves selected at the said

oral interview. Therefore, only because they did not find

themselves to have emerged successful as a result of

their combined performance both at written test and oral

interview, they have filed writ petitions. This Court further

pointed out that if a candidate takes a calculated chance

and appears at the interview, then, only because the

result of the interview is not palatable to him, he cannot

turn round and subsequently contend that the process of

interview was unfair or the Selection Committee was not

properly constituted.”

In Pradeep Kumar Rai & ors. Vs. Dinesh Kumar Pandey,

reported in (2015) 11 SCC 493 wherein a common controversy

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relating to the promotion of Constables and Head Constables to the

rank of Sub-Inspectors in the State of Uttar Pradesh arose and the

candidates having participated in the selection, challenged the

selection and promotion process, the Hon’ble Supreme Court held:

“17. Moreover, we would concur with the Division Bench on

one more point that the appellants had participated in

the process of interview and not challenged it till the

results were declared. There was a gap of almost four

months between the interview and declaration of result.

However, the appellants did not challenge it at that time.

Thus, it appears that only when the appellants found

themselves to be unsuccessful, they challenged the

interview. This cannot be allowed. The candidates

cannot approbate and reprobate at the same time. Either

the candidates should not have participated in the

interview and challenged the procedure or they should

have challenged immediately after the interviews were

conducted. (See Vijendra Kumar Verma v. Public

Service Commission and K.H. Siraj v. High Court of

Kerala.)”

In Madras Institute of Development Studies & anr. Vs. K.

Sivasubramaniyan & ors., reported in (2016) 1 SCC 454 wherein the

respondent No. 1 challenged the decision of the Executive Council

which approved the recommendation of the Selection Committee, on

the ground that the selection was not done strictly as per the

qualification mentioned in the advertisement. The learned Single

Judge dismissed the writ petition but the Division Bench allowed the

appeal and reversed the order of the learned Single Judge. The

Hon’ble Supreme Court held:

“13. Be that as it may, the respondent, without raising any

objection to the alleged variations in the contents of the

advertisement and the Rules, submitted his application

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W.P. (C) No. 8 of 2017

and participated in the selection process by appearing

before the Committee of Experts. It was only after he

was not selected for appointment that he turned around

and challenged the very selection process. Curiously

enough, in the writ petition the only relief sought for is to

quash the order of appointment without seeking any

relief as regards his candidature and entitlement to the

said post.

14. The question as to whether a person who consciously

takes part in the process of selection can turn around

and question the method of selection is no longer res

integra.”

In addition to the aforesaid decisions, Shri B.P. Sahu,

assisted by Ms. Th. Babita, the learned counsels appearing for the

respondent No. 6 has relied upon the decision in Union of India &

ors. Vs. S. Vinodh Kumar& ors., reported in (2007) 8 SCC 100

wherein the subject matter in issue relates to the appointment of

“Gangman” by the Railways and the respondent therein questioned

the selection process, the Hon’ble Supreme Court held:

“18. It is also well settled that those candidates who had

taken part in the selection process knowing fully well the

procedure laid down therein were not entitled to question

the same (See Munindra Kumar v. Rajiv Govil) (See also

Rashmi Mishra v. M.P. Public Service Commission.)”

In K.H. Siraj Vs. High Court of Kerala & ors., reported in

(2006) 6 SCC 395 wherein the High Court of Kerala issued a

notification dated 26-03-2001 inviting applications for appointment to

the post of Munsif Magistrate and after the process of selection was

over, a select list was prepared on 07-02-2002. The appellant herein

filed a writ petition praying for quashing the select list insofar as it is

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W.P. (C) No. 8 of 2017

contrary to the principles and rules relating to reservations. When the

matter came up before the Hon’ble Supreme Court, it was held:

“71. Mr L.N. Rao made a further contention based on the

above decision that the dereservation of any post has to

be done by the Government. This contention, in our

view, has also no force. Assuming that this is a case of

dereservation, the High Court only forwarded the list to

the Government and it is the Government who approved

the same. Dereservation, if any, of the posts was,

therefore, done only by the Government and not by the

High Court. But as stated earlier, the question of

dereservation does not arise, as this is a case of

application of the mandate of Rule 15. In the

circumstances, the second contention raised by Mr L.N.

Rao is also incorrect and untenable, apart from the fact

that the appellant-petitioners who are not eligible

candidates are not entitled to contest the validity of the

select list on this ground. Since they are ineligible for

appointment, no relief, in any case, be afforded to them

in any event.

73. The appellant-petitioners having participated in the

interview in this background, it is not open to the

appellant-petitioners to turn round thereafter when they

failed at the interview and contend that the provision of a

minimum mark for the interview was not proper. It was

so held by this Court in para 9 of Madan Lal v. State of

J&K as under: (SCC p. 493)

“9. Before dealing with this contention, we must keep in

view the salient fact that the petitioners as well as

the contesting successful candidates being

respondents concerned herein, were all found

eligible in the light of marks obtained in the written

test, to be eligible to be called for oral interview. Up

to this stage there is no dispute between the parties.

The petitioners also appeared at the oral interview

conducted by the members concerned of the

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W.P. (C) No. 8 of 2017

Commission who interviewed the petitioners as well

as the contesting respondents concerned. Thus the

petitioners took a chance to get themselves

selected at the said oral interview. Only because

they did not find themselves to have emerged

successful as a result of their combined

performance both at written test and oral interview,

they have filed this petition. It is now well settled

that if a candidate takes a calculated chance and

appears at the interview, then, only because the

result of the interview is not palatable to him, he

cannot turn round and subsequently contend that

the process of interview was unfair or the Selection

Committee was not properly constituted. In Om

Prakash Shukla v. Akhilesh Kumar Shukla it has

been clearly laid down by a Bench of three learned

Judges of this Court that when the petitioner

appeared at the examination without protest and

when he found that he would not succeed in

examination he filed a petition challenging the said

examination, the High Court should not have

granted any relief to such a petitioner.”

Shri R.S. Reisang, the learned Government Advocate

appearing for the respondent Nos. 1 & 2 who has added feathers to

the arguments of Shri Kh. Tarunkumar and Shri B.P. Sahu, relied

upon the decision in Sadananda Halo & ors. Vs. Momtaz Ali

Sheikh ors., reported in (2008) 4 SCC 619 wherein an advertisement

dated 21-08-2004 was issued for appointment of 5500 Armed

Constables and the recruitment process which took place between

03-12-2004 and 11-12-2004, came to be challenged by the

unsuccessful candidates. The learned Single Judge upheld the

selection process in respect of 10 districts and the Division Bench

allowed appeals in respect of four districts and when the matter came

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W.P. (C) No. 8 of 2017

up before the Supreme Court, it set aside the judgments of the

learned Single Judge as well as the Division Bench thereby

upholding the entire selection process and held:

“35. Similarly, we are also not impressed with the complaint

that the district wise restrictions were removed by the

Government by its Letter dated 16-11-2004 apart from

the fact that both the courts have not commented on this

aspect adversely against the selection process. We are

of the opinion that, that by itself cannot be a reason to

find fault with the selection process, again on the ground

that the petitioners were not able to show as to what

prejudice was caused because of the removal of such

step taken by the Government on 16-11-2004. On the

other hand we are of the clear opinion that the

Government had made the selection process broader by

removing the district wise restrictions. As regards the

complaint that 50 marks were allotted for the personal

interview or viva voce, the learned Single Judge as well

as the Division Bench have found that in the peculiar

circumstances it was of no consequence. We also

endorse this view as no arguments were addressed on

this point before us. Therefore, even that complaint has

to go. In the earlier part of this judgment we have

already noted that these 50 marks were also distributed

on as many as six factors and each factor had separate

marks. The oral test, after the distribution of the marks

over the factors like educational qualifications,

smartness, general ambience in reading, writing, extra

qualifications, proficiency in sports and martial arts, is

only left with 20 marks which, in our opinion, is quite

reasonable. We do not, therefore, find anything wrong

on account of the allotment of 50 marks for viva voce.

This is apart from the fact that the unsuccessful

candidates, after having taken part in the interview

process could not turn back and call names to the

system.

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W.P. (C) No. 8 of 2017

59. It is also a settled position that the unsuccessful

candidates cannot turn back and assail the selection

process. There are of course the exceptions carved out

by this Court to this general rule. This position was

reiterated by this Court in its latest judgment in Union of

India v. S. Vinodh Kumar where one of us (Sinha, J.)

was a party. This was a case where different cut-off

marks were fixed for the unreserved candidates and the

Scheduled Caste and Scheduled Tribe candidates. This

Court in para 10 of its judgment endorsed the action and

recorded a finding that there was a power in the

employer to fix the cut-off marks which power was

neither denied nor disputed and further that the cut-off

marks were fixed on a rational basis and, therefore, no

exception could be taken. The Court also referred to the

judgment in Om Prakash Shukla v. Akhilesh Kumar

Shukla where it has been held specifically that when a

candidate appears in the examination without protest

and subsequently is found to be not successful in the

examination, the question of entertaining the petition

challenging such examination would not arise. The Court

further made observations in para 34 of the judgment to

the effect: (S. Vinodh Kumar case, SCC p. 107, para 19)

“19. … ‘34. There is thus no doubt that while question of

any estoppel by conduct would not arise in the

contextual facts but the law seems to be well

settled that in the event a candidate appears at

the interview and participates therein, only

because the result of the interview is not

“palatable” to him, he cannot turn round and

subsequently contend that the process of

interview was unfair or there was some lacuna in

the process.’

In para 20 this Court further observed

that there are certain exceptions to the

aforementioned rule. However, the Court did not

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W.P. (C) No. 8 of 2017

go into those exceptions since the same were not

material.”

On the other hand, Shri A. Bimol, the learned counsel

appearing for the petitioners has submitted that there are exceptions

to the rule mentioned hereinabove and his contention is correct to

that extent as is evident from the decision in Union of India & ors.

Vs. S. Vinodh Kumar & ors., reported in (2007) 8 SCC 100 and the

relevant para thereof is as under:

“20. We are, however, not oblivious that there are certain

exceptions to the aforementioned Rules but we are not

concerned therewith in the present case.”

Similarly, in Sadananda Halo & ors. Vs. Momtaz Ali

Sheikh ors., reported in (2008) 4 SCC 619, the Hon’ble Supreme

Court observed as under:

“59 ... In para 20 this Court further observed that there are

certain exceptions to the aforementioned rule. However,

the Court did not go into those exceptions since the

same were not material.”

Shri A. Bimol, the learned counsel appearing for the

petitioners has submitted that the present case will fall under

the aforesaid exceptions because of its peculiar facts. According to

him, when the State Government issued an order appointing

four candidates against the four vacancies, there was no cause of

action for raising any objection thereto. The petitioners were/are

not aggrieved with the proceedings of the selection or the

methodology of the selection process but they are challenging

the recommendation and appointment of the private respondent Nos.

6 & 7 only on the ground that they did not possess the essential

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qualifications prescribed in the recruitment rules. The ratio laid down

by the Hon’ble Supreme Court in the decisions relied upon by the

respondents, are not applicable to the facts of the present case. On

the contrary, he has relied upon the decision in Rajkumar & ors. Vs.

Shakti Raj & ors., reported in (1997) 9 SCC 527 wherein the Hon’ble

Supreme Court has held that where the procedure of selection and

exercise of power of the authorities suffer from glaring illegalities, the

candidates appearing in the selection process are not barred from

questioning the selection and the principles of acquiescence/

estoppels are not applicable. There is some force in his submission

because the facts of the present case are not identical with that of the

cases cited by the respondents wherein the selection process came

to be challenged by the unsuccessful candidates so that no one

could be appointed on the basis thereof. In the present case, after

the selection process having completed, four candidates who are on

top in the merit list and as per roster, were appointed against the four

notified vacancies which could never be challenged by the petitioners

in view of the law laid down by the Hon’ble Supreme Court. In fact,

the selection process initiated pursuant to the Notification dated

02-12-2015 stood ended then and there and in normal

circumstances, nothing could be done thereafter by the State

Government. However, two posts came to be added by the State

Government by way of an amendment of the recruitment rules and

the respondent Nos. 6 & 7 were appointed against the said posts

which came to be challenged by the petitioners on the ground that

they did not possess the essential qualification. The creation of two

more posts after the selection process stood concluded on the

appointment of four candidates against the four notified vacancies as

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W.P. (C) No. 8 of 2017

per the Recruitment Rules, 2015, gave rise to a fresh cause of action

and it cannot be said that the same could not be challenged by the

petitioners. Whether the private respondent Nos. 6 & 7 did possess

the essential qualification or not is an important issue which will

determine the correctness of the basis on which they have been

appointed and there was nothing wrong in questioning it by the

petitioners when they were at par with the private respondent Nos. 6

& 7 as unsuccessful candidates and accordingly, it can be safely held

that the writ petition is maintainable.

[7] As regards the merit of the case, Shri A. Bimol, the learned

counsel appearing for the petitioners submitted that the private

respondent Nos. 6 & 7 were not qualified and eligible for appointment

as the Additional Government Advocate (High Court), as they did not

possess the essential qualification of not less than 10 (ten) years in

practice as an Advocate as prescribed in the recruitment rules. In

terms of the provisions of Rule 49 of the BCI rules, they had ceased

to practise as advocates after they having been appointed as full-time

salaried employees of the State Government. In order to substantiate

his contentions, he did rely upon the decision rendered by the Hon’ble

Supreme Court in Sushma Suri Vs. Govt. of National Capital

Territory of Delhi & anr., reported in (1999) 1 SCC 330 wherein the

appellant while working as the Assistant Government Advocate,

applied for appointment to the Delhi Higher Judicial Service claiming

that she had put in experience of less than seven years as an

advocate. When she was not called for interview, she filed a petition

in the High Court under Article 226 of the Constitution. The High

Court relying upon its earlier decision in Oma Shanker Sharma Vs.

Delhi Admn., held that she was not entitled to be considered for

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W.P. (C) No. 8 of 2017

appointment. The Hon’ble Supreme in an appeal was of the view that

the view taken by the High Court could not be upheld and disposed of

the appeal in the manner indicated therein. The Hon’ble Supreme

Court held:

“10. Under Rule 49 of the Bar Council of India Rules, an

advocate shall not be a full-time employee of any

person, Government, firm, corporation or concern and

on taking up such employment, shall intimate such fact

to the Bar Council concerned and shall cease to

practise as long as he is in such employment. However,

an exception is made in such cases of law officers of

the Government and corporate bodies despite his being

a full-time salaried employee if such law officer is

required to act or plead in court on behalf of others. It is

only to those who fall into other categories of

employment that the bar under Rule 49 would apply. An

advocate employed by the Government or a body

corporate as its law officer even on terms of payment of

salary would not cease to be an advocate in terms of

Rule 49 if the condition is that such advocate is required

to act or plead in courts on behalf of the employer. The

test, therefore, is not whether such person is engaged

on terms of salary or by payment of remuneration, but

whether he is engaged to act or plead on its behalf in a

court of law as an advocate. In that event the terms of

engagement will not matter at all. What is of essence is

as to what such law officer engaged by the Government

does — whether he acts or pleads in court on behalf of

his employer or otherwise. If he is not acting or pleading

on behalf of his employer, then he ceases to be an

advocate. If the terms of engagement are such that he

does not have to act or plead, but does other kinds of

work, then he becomes a mere employee of the

Government or the body corporate. Therefore, the Bar

Council of India has understood the expression

“advocate” as one who is actually practising before

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W.P. (C) No. 8 of 2017

courts which expression would include even those who

are law officers appointed as such by the Government

or body corporate.”

In Satish Kumar Sharma Vs. Bar Council of H.P.,

reported in (2001) 2 SCC 365 wherein the appellant was appointed

as Assistant (Legal) which was later re-designated as a Law officer,

because of which the appellant was enrolled as an advocate. After

show-cause notice being served upon him and pursuant to a

resolution of the State Bar Council, his enrolment was withdrawn with

immediate effect. When the validity and correctness of which being

challenged, the Hon’ble High Court dismissed the petition and the

appeal preferred against the order of the High Court failed. The

Hon’ble Supreme Court held:

“19. It is an admitted position that no rules were framed by

the respondent entitling a Law Officer appointed as a

full-time salaried employee coming within the meaning

of para 3 of Rule 49 to enrol as an advocate. Such an

enrolment has to come from the rules made under

Section 28(2)(d) read with Section 24(1)(e) of the Act.

Hence it necessarily follows that if there is no rule in this

regard, there is no entitlement. In the absence of

express or positive rule, the appellant could not fit in the

exception and the bar contained in the first paragraph of

Rule 49, was clearly attracted as rightly held by the High

Court. Added to this, in the light of terms of

appointment/promotion orders issued by the Board to

the appellant, it is clear that the first appointment of the

appellant was as Assistant (Legal). Subsequent

promotions as Under-Secretary (Legal)-cum-Law

Officer, Deputy Secretary (Legal)-cum-Law Officer and

Additional Secretary (Law) show that the appellant was

not designated as Law Officer. Similarly, there is no

indication in any of the appointment/promotion orders

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W.P. (C) No. 8 of 2017

issued to the appellant that he was to act or plead in the

courts of law on behalf of the Board except in the order

dated 5-7-1984. At any rate from these orders it cannot

be said that he was/is required to act or plead in courts

on behalf of the employer mainly or exclusively so as to

come within the meaning of “Law Officer” for the

purpose of Rule 49. It appears the modified orders

dated 11-6-1984 and 5-7-1984 were issued by the

Board in order to get enrolment of the appellant as an

advocate on the roll of the respondent. None of the

appointment/promotion orders issued to the appellant

indicate that his duties were exclusively to act or plead

in courts on behalf of the Board as “Law Officer”. These

orders clearly show that the appellant was required to

work in the Legal Cell of the Secretariat of the Board;

was given different pay scales; rules of seniority were

applicable; promotions were given to him on the basis of

the recommendations of the Departmental Promotion

Committee; was amenable to disciplinary proceedings,

etc. Further looking to the nature of duties of Legal Cell

as stated in the regulation of business of the Board

extracted above, the appellant being a full-time salaried

employee had/has to attend to so many duties which

appear to be substantial and predominant. In short and

substance we find that the appellant was/is a full-time

salaried employee and his work was not mainly or

exclusively to act or plead in court. Further, there may

be various challenges in courts of law assailing or

relating to the decisions/actions taken by the appellant

himself such as challenge to issue of statutory

regulation, notification or order; construction of statutory

regulation, statutory orders and notifications, the

institution/withdrawal of any prosecution or other legal/

quasi-legal proceedings etc. In a given situation the

appellant may be amenable to disciplinary jurisdiction of

his employer and/or to the disciplinary jurisdiction of the

Bar Council. There could be conflict of duties and

interests. In such an event, the appellant would be in an

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W.P. (C) No. 8 of 2017

embarrassing position to plead and conduct a case in a

court of law. Moreover, mere occasional appearances in

some courts on behalf of the Board even if they be, in

our opinion, could not bring the appellant within the

meaning of “Law Officer” in terms of para 3 of Rule 49.

The decision in Sushma Suri v. Govt. of National Capital

Territory of Delhi in our view, does not advance the

case of the appellant. That was a case where meaning

of expression “from the Bar” in relation to appointment

as District Judge requiring not less than seven years’

standing as an advocate or a pleader came up for

consideration. The word “advocate” in Article 233(2)

was held to include a Law Officer of the Central or State

Government, public corporation or a body corporate

who is enrolled as an advocate under exception to Rule

49 of Bar Council of India Rules and is practising before

courts for his employee. Para 10 of the said judgment

reads: (SCC pp. 336-37)

“10. Under Rule 49 of the Bar Council of India Rules, an

advocate shall not be a full-time employee of any

person, Government, firm, corporation or concern

and on taking up such employment, shall intimate

such fact to the Bar Council concerned and shall

cease to practise as long as he is in such

employment. However, an exception is made in

such cases of Law Officers of the Government and

corporate bodies despite his being a full-time

salaried employee if such Law Officer is required to

act or plead in court on behalf of others. It is only to

those who fall into other categories of employment

that the bar under Rule 49 would apply. An

advocate employed by the Government or a body

corporate as its Law Officer even on terms of

payment of salary would not cease to be an

advocate in terms of Rule 49 if the condition is that

such advocate is required to act or plead in courts

on behalf of the employer. The test, therefore, is

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W.P. (C) No. 8 of 2017

not whether such person is engaged on terms of

salary or by payment of remuneration, but whether

he is engaged to act or plead on its behalf in a

court of law as an advocate. In that event the terms

of engagement will not matter at all. What is of

essence is as to what such Law Officer engaged

by the Government does — whether he acts or

pleads in court on behalf of his employer or

otherwise? If he is not acting or pleading on behalf

of his employer, then he ceases to be an advocate.

If the terms of engagement are such that he does

not have to act or plead, but does other kinds of

work, then he becomes a mere employee of the

Government or the body corporate. Therefore, the

Bar Council of India has understood the

expression ‘advocate’ as one who is actually

practising before courts which expression would

include even those who are Law Officers

appointed as such by the Government or body

corporate.”

(emphasis supplied)

20. As stated in the above para the test indicated is whether

a person is engaged to act or plead in a court of law as

an advocate and not whether such person is engaged

on terms of salary or payment by remuneration. The

essence is as to what such Law Officer engaged by the

Government does.”

He has placed further reliance in Deepak Aggarwal Vs.

Keshav Kaushik & ors., reported in (2013) 5 SCC 277 wherein the

Punjab Haryana High Court, Chandigarh issued a notification dated

18-05-2007 inviting applications for appointment to certain posts of

Additional District Judge. After the selection process was over, the

High Court recommended the names 16 candidates in order of merit,

on the basis of which the State of Haryana issued appointment

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orders. Some of the unsuccessful candidates filed writ petitions

contending that the appellant and four other did not have requisite

criteria to qualify for recruitment as contemplated in Article 233 of the

Constitution of India. The Hon’ble High Court disposed of the writ

petitions with directions, one of which being that the appointment

orders in respect of the appellant and four others were quashed and

the appeals preferred against thereof were allowed by the Hon’ble

Supreme Court. The question that arose was as to whether a

Public Prosecutor/Assistant Public Prosecutor/District Attorney/

Assistant District Attorney/Deputy Advocate General, who is in full-

time employment of the Government, ceases to be an advocate

pleader within the meaning of Article 233(2) of the Constitution. The

Hon’ble Supreme Court held:

“98. Admittedly, by the above resolution of the Bar Council of

India, the second and third paragraphs of Rule 49 have

been deleted but we have to see the effect of such

deletion. What Rule 49 of the BCI Rules provides is that

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. The “employment”

spoken of in Rule 49 does not cover the employment of

an advocate who has been solely or, in any case,

predominantly employed to act and/or plead on behalf

of his client in courts of law. If a person has been

engaged to act and/or plead in court of law as an

advocate although by way of employment on terms of

salary and other service conditions, such employment is

not what is covered by Rule 49 as he continues to

practise law but, on the other hand, if he is employed

not mainly to act and/or plead in a court of law, but to do

other kinds of legal work, the prohibition in Rule 49

immediately comes into play and then he becomes a

mere employee and ceases to be an advocate. The bar

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W.P. (C) No. 8 of 2017

contained in Rule 49 applies to an employment for work

other than conduct of cases in courts as an advocate. In

this view of the matter, the deletion of the second and

third paragraphs by the Resolution dated 22-6-2001 has

not materially altered the position insofar as advocates

who have been employed by the State Government or

the Central Government to conduct civil and criminal

cases on their behalf in the courts are concerned.

99. What we have said above gets fortified by Rule 43 of the

BCI Rules. Rule 43 provides that an advocate, who has

taken a full-time service or part-time service inconsistent

with his practising as an advocate, shall send a

declaration to that effect to the respective State Bar

Council within the time specified therein and any default

in that regard may entail suspension of the right to

practice. In other words, if full-time service or part-time

service taken by an advocate is consistent with his

practising as an advocate, no such declaration is

necessary. The factum of employment is not material

but the key aspect is whether such employment is

consistent with his practising as an advocate or, in other

words, whether pursuant to such employment, he

continues to act and/or plead in the courts. If the answer

is yes, then despite employment he continues to be an

advocate. On the other hand, if the answer is in the

negative, he ceases to be an advocate.”

In Pramod Kumar Vs. U.P. Secondary Education

Services Commission & ors., reported in (2008) 7 SCC 153

wherein the appellant was appointed as an Assistant in CT grade in

an intermediate college on the strength of his B.Ed. degree from

Maithili Vishwa Vidyapeeth, Sankat Mohan Dham, Darbhanga, Bihar

which was not recognised by the UGC. An opportunity was granted to

him to obtain a degree from a recognised university within two years

and although allegedly, he obtained a degree from Maharishi

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Dayanand University, only a marksheet could be submitted by him. A

show-cause notice was served upon him with the charge that he had

obtained his appointment on the basis of a fabricated and illegal

B.Ed. degree and on completion of the departmental proceeding, his

service was terminated by order dated 12-02-1997 which came to be

challenged before the Hon’ble High Court. The learned Single Judge

dismissed the petition and the appeal preferred against it also failed.

The Hon’ble Supreme Court dismissed the appeal on the ground that

there was no merit. The Hon’ble Supreme Court held:

“18. If the essential educational qualification for recruitment

to a post is not satisfied, ordinarily the same cannot be

condoned. Such an act cannot be ratified. An

appointment which is contrary to the statute/statutory

rules would be void in law. An illegality cannot be

regularised, particularly, when the statute in no

unmistakable term says so. Only an irregularity can be.

[See Secy., State of Karnataka v. Umadevi (3), National

Fertilizers Ltd. v. Somvir Singh and Post Master

General, Kolkata v. Tutu Das (Dutta).]”

[8] On the other hand, Shri Kh. Tarunkumar, the learned

counsel appearing for the private respondent No. 7 has submitted

that the service rendered by the private respondent No. 7 cannot be

termed as a full time salaried employment. His name was/ is still in

the roll of the Bar Council of Manipur without any objection being

raised by any one and his engagement was predominantly and

mainly to act and/or plead on behalf of the Home Department,

Manipur in the courts of law. The service rendered by him was not

inconsistent with the practice of law as stipulated in Rule 43 of the

B.C.I Rules. He has relied upon the decision in Pravin C. Shah Vs.

K.A. Mohd. Ali & ors., reported in (2001) 8 SCC 650 wherein the

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W.P. (C) No. 8 of 2017

respondent who has been found guilty of contempt of court by the

High Court of Kerala in two cases successively, continued to conduct

cases before the court, for which the Kerala Bar Council initiated

disciplinary proceedings against him resulting in a punishment of

debarring him from acting or pleading in any court till he gets himself

purged of the contempt of court by an order of the appropriate court.

In an appeal, the Bar Council of India set aside the interdict imposed

on him and on an appeal preferred by the same person at whose

instance, the State Bar Council initiated action against him, the

Hon’ble Supreme Court held:

“16. Rule 11 of the Rules is not a provision intended for the

Disciplinary Committee of the Bar Council of the State

or the Bar Council of India. It is a matter entirely

concerning the dignity and the orderly functioning of the

courts. The right of the advocate to practise envelops a

lot of acts to be performed by him in discharge of his

professional duties. Apart from appearing in the courts

he can be consulted by his clients, he can give his legal

opinion whenever sought for, he can draft instruments,

pleadings, affidavits or any other documents, he can

participate in any conference involving legal discussions

etc. Rule 11 has nothing to do with all the acts done by

an advocate during his practice except his performance

inside the court. Conduct in court is a matter concerning

the court and hence the Bar Council cannot claim that

what should happen inside the court could also be

regulated by the Bar Council in exercise of its

disciplinary powers. The right to practise, no doubt, is

the genus of which the right to appear and conduct

cases in the court may be a specie. But the right to

appear and conduct cases in the court is a matter on

which the court must have the major supervisory power.

Hence the court cannot be divested of the control or

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W.P. (C) No. 8 of 2017

supervision of the court merely because it may involve

the right of an advocate.

17. When the Rules stipulate that a person who committed

contempt of court cannot have the unreserved right to

continue to appear and plead and conduct cases in the

courts without any qualm or remorse, the Bar Council

cannot overrule such a regulation concerning the

orderly conduct of court proceedings. Courts of law are

structured in such a design as to evoke respect and

reverence for the majesty of law and justice. The

machinery for dispensation of justice according to law is

operated by the court. Proceedings inside the courts are

always expected to be held in a dignified and orderly

manner. The very sight of an advocate, who was found

guilty of contempt of court on the previous hour,

standing in the court and arguing a case or cross-

examining a witness on the same day, unaffected by the

contemptuous behaviour he hurled at the court, would

erode the dignity of the court and even corrode the

majesty of it besides impairing the confidence of the

public in the efficacy of the institution of the courts. This

necessitates vesting of power with the High Court to

formulate rules for regulating the proceedings inside the

court including the conduct of advocates during such

proceedings. That power should not be confused with

the right to practise law. While the Bar Council can

exercise control over the latter, the High Court should

be in control of the former.

18. In the above context it is useful to quote the following

observations made by a Division Bench of the

Allahabad High Court in Prayag Das v. Civil Judge,

Bulandshahr: (AIR p. 136, para 9)

“ The High Court has a power to regulate the

appearance of advocates in courts. The right to

practise and the right to appear in courts are not

synonymous. An advocate may carry on chamber

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practice or even practise in courts in various other

ways, e.g., drafting and filing of pleadings and

vakalatnama for performing those acts. For that

purpose his physical appearance in courts may not at

all be necessary. For the purpose of regulating his

appearance in courts the High Court should be the

appropriate authority to make rules and on a proper

construction of Section 34(1) of the Advocates Act it

must be inferred that the High Court has the power to

make rules for regulating the appearance of

advocates and proceedings inside the courts.

Obviously the High Court is the only appropriate

authority to be entrusted with this responsibility.”

In Ex-Capt. Harish Uppal Vs. Union of India & ors.,

reported in (2003) 2 SCC 45 wherein the question was whether

lawyers have a right to strike and/or give a call for boycott of court/s.

The Hon’ble Supreme Court held:

“34. One last thing which must be mentioned is that the right

of appearance in Courts is still within the control and

jurisdiction of Courts. Section 30 of the Advocates Act

has not been brought into force and rightly so. Control of

conduct in Court can only be within the domain of

Courts. Thus Article 145 of the Constitution of India

gives to the Supreme Court and Section 34 of the

Advocates Act gives to the High Court power to frame

rules including rules regarding condition on which a

person (including an Advocate) can practice in the

Supreme Court and/or in the High Court and Courts

subordinate thereto. Many Courts have framed rules in

this behalf. Such a rule would be valid and binding on

all. Let the Bar take note that unless self restraint is

exercised, Courts may now have to consider framing

specific rules debarring Advocates, guilty of contempt

and/or unprofessional or unbecoming conduct, from

appearing before the Courts. Such a rule if framed would

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W.P. (C) No. 8 of 2017

not have anything to do with the disciplinary jurisdiction

of Bar Councils. It would be concerning the dignity and

orderly functioning of the Courts. The right of the

advocate to practise envelopes a lot of acts to be

performed by him in discharge of his professional duties.

Apart from appearing in the courts he can be consulted

by his clients, he can give his legal opinion whenever

sought for, he can draft instruments, pleadings, affidavits

or any other documents, he can participate in any

conference involving legal discussions, he can work in

any office or firm as a legal officer, he can appear for

clients before an arbitrator or arbitrators etc. Such a rule

would have nothing to do with all the acts done by an

advocate during his practice. He may even file Vakalat

on behalf of client even though his appearance inside

the court is not permitted. Conduct in Court is a matter

concerning the Court and hence the Bar Council cannot

claim that what should happen inside the Court could

also be regulated by them in exercise of their disciplinary

powers. The right to practice, no doubt, is the genus of

which the right to appear and conduct cases in the Court

may be a specie. But the right to appear and conduct

cases in the Court is a matter on which the Court must

and does have major supervisory and controlling power.

Hence Courts cannot be and are not divested of control

or supervision of conduct in Court merely because it

may involve the right of an advocate. A rule can stipulate

that a person who has committed contempt of Court or

has behaved unprofessionally and in an unbecoming

manner will not have the right to continue to appear and

plead and conduct cases in Courts. The Bar Councils

cannot overrule such a regulation concerning the orderly

conduct of Court proceedings. On the contrary it will be

their duty to see that such a rule is strictly abided by.

Courts of law are structured in such a design as to

evoke respect and reverence to the majesty of law and

justice. The machinery for dispensation of justice

according to law is operated by the Court. Proceedings

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W.P. (C) No. 8 of 2017

inside the Courts are always expected to be held in a

dignified and orderly manner. The very sight of an

advocate, who is guilty of contempt of Court or of

unbecoming or unprofessional conduct, standing in the

court would erode the dignity of the Court and even

corrode the majesty of it besides impairing the

confidence of the public in the efficacy of the institution

of the Courts. The power to frame such rules should not

be confused with the right to practise law. While the Bar

Council can exercise control over the latter, the Courts

are in control of the former. This distinction is clearly

brought out by the difference in language in Section

49 of the Advocates Act on the one hand and Article

145 of the Constitution of India and Section 34(1) of the

Advocates Act on the other. Section 49 merely

empowers the Bar Council to frame rules laying down

conditions subject to which an Advocate shall have a

right to practice i.e. do all the other acts set out above.

However, Article 145 of the Constitution of India

empowers the Supreme Court to make rules for

regulating this practice and procedure of the Court

including inter-alia rules as to persons practising before

this Court. Similarly Section 34 of the Advocates Act

empowers High Courts to frame rules, inter-alia to lay

down conditions on which an Advocate shall be

permitted to practice in Courts. Article 145 of the

Constitution of India and Section 34 of the Advocates

Act clearly show that there is no absolute right to an

Advocate to appear in a Court. An Advocate appears in

a Court subject to such conditions as are laid down by

the Court. It must be remembered that Section 30 has

not been brought into force and this also shows that

there is no absolute right to appear in a Court. Even

if Section 30 were to be brought into force control of

proceedings in Court will always remain with the Court.

Thus even then the right to appear in Court will be

subject to complying with conditions laid down by Courts

just as practice outside Courts would be subject to

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W.P. (C) No. 8 of 2017

conditions laid down by Bar Council of India. There is

thus no conflict or clash between other provisions of

the Advocates Act on the one hand and Section

34 or Article 145 of the Constitution of India on the other.

In Mahipal Singh Rana, Advocate Vs. State of Uttar

Pradesh, reported in (2016) 8 SCC 335 wherein the appellant was

found guilty of criminal contempt for intimidating and threatening a

Civil Judge (Senior Division), Etah and the High Court directed the

Bar Council of Uttar Pradesh to consider the facts contained in the

complaint and to initiate appropriate proceedings against him for

professional misconduct. One of the issues involved therein was as to

whether on conviction for criminal contempt, the appellant can be

allowed to practice. The Honble Supreme Court held:

“30. This Court, while examining its powers under Article 129

read with Article 142 of the Constitution with regard to

awarding sentence of imprisonment together with

suspension of his practise as an Advocate, in Supreme

Court Bar Assn., the Constitution Bench held that while

in exercise of contempt jurisdiction, this Court cannot

take over jurisdiction of Disciplinary Committee of the

Bar Council and it is for the Bar Council to punish the

advocate by debarring him from practise or suspending

his licence as may be warranted on the basis of his

having been found guilty of contempt, if the Bar Council

fails to take action, this Court could invoke its appellate

power under Section 38 of the Advocates Act. In a given

case, this Court or the High Court can prevent the

contemnor advocate from appearing before it or other

courts till he purges himself of the contempt which is

different from suspending or revoking the licence or

debarring him to practise.”

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In State of Punjab Vs. Gurdarshan Singh Grewal,

reported in 1994 Supp. (2) SCC 107 wherein the respondent was

appointed as a part-time Administrator General and Official Trustee-

cum-Treasurer Charitable Endowment and when his appointment

was terminated, he challenged it by way of a writ petition in which the

learned Single Judge held that he was a Government Servant and on

an appeal, it was confirmed. When the appeal was listed, the Hon’ble

Supreme Court allowed the appeal holding:

“2. It is contended by the State that the respondent being

an advocate he cannot be considered to be a

government servant, Article 311 of the Constitution is

not attracted to a part-time appointment to the office of

Administrator General etc. We find force in the

contention. So long as the respondent continues to be

an advocate he is entitled not only to practising the

profession of the law but he can seek part-time

appointment subject to permission by the State Bar

Council. The exceptions are law officers of the State or

Central or Corporate Sector as they are officers of the

Court and are responsible to the Court. If one opts for

full-time Government service he/she should intimate to

the Bar Council suspending practice. It is not the

respondent’s case that he suspended his practice. The

Pay Commission’s Report clearly indicates that the

appointment from time to time is only on contract basis.

In fact the order of appointment clearly shows that it is

terminable with one month’s notice. There is no pay

scale prescribed for the post. The statement as salary is

misnomer and it would be an honorarium for the duty

discharged of the duties of those offices. Obviously, the

other rules relating to the government servants are not

attracted to the person holding the part-time post of

Administrator General etc. It is true that there may be

permanent part-time Government office or post. That is

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not relevant to the facts. The character of the post and a

person who holds the post are relevant. The contention

that the respondent’s failure to suspend practice may

expose him to disciplinary conduct by the Bar Council

too is not relevant. In these circumstances, the High

Court is clearly illegal in holding that the respondent is a

government servant and entitled to the protection of

Article 311 of the Constitution. The appeal is

accordingly allowed, the writ petition stands dismissed

but in the circumstances without costs.”

The submissions made by Shri S. Biswajit Meitei, the

learned counsel appearing for the Law Department, the respondent

No. 3 herein and the decisions relied by him are almost similar to that

of Shri Kh. Tarunkumar and therefore, the same are not repeated

here for the sake of brevity. But he has cited one decision of the

Bombay High Court reported in [2010 (2) MLJ 26], Lawyers

Collective Vs. Bar Council of India & ors. wherein it has been held

that a person can be said to be practising in non-litigious matters,

when he represents to be an expert in the field of law and renders

legal assistance to another person by drafting documents, advising

clients, giving opinions etc.; that it is not in dispute that once a person

is enrolled as an advocate, he is entitled to practise the profession of

law in litigious as well as non-litigious matters and that the

expressions “to practise the profession of law” in Section 29 of the

Act is wide enough to cover the persons practising litigious matters

as well as the persons practising in non-litigious matters. In addition

to what has been submitted by Shri Kh. Tarunkumar, Shri B.P. Sahu,

assisted by Ms. Th. Babita, appearing for the private respondent No.

6 submitted that on being appointed as the OSD (Legal) on contract

basis, he could not be said to have become a full-time salaried

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W.P. (C) No. 8 of 2017

employee. His engagement which was on contract basis for a fixed

term, would come to an end on the expiry of its term and did not alter

the character of his being a legal practitioner. In support of his

contention, he has relied upon the decision of the Hon’ble Supreme

Court in State of U.P. & anr. Vs. Jhori Mal, reported in (2004) 4

SCC 714 wherein the Hon’ble Supreme Court referred to para 5 of its

earlier decision in UP Vs. Ramesh Chandra Sharma, the relevant

portion of which is as under:

“66. In State of U.P. v. Ramesh Chandra Sharma Verma,

C.J. speaking for the Bench opined: (SCC p. 530,

para 5)

“In view of the clear provision in clause (3) of para 7.06

that the ‘appointment of any legal practitioner as a

District Government Counsel is only professional

engagement’, it is difficult to appreciate the submission

for which sustenance is sought from the provisions

contained in the same Manual. The appointment being

for a fixed term and requiring express renewal in the

manner provided in the Manual, there is no basis to

contend that it is not a professional engagement of a

legal practitioner but appointment to a post in

government service which continues till attaining the

age of superannuation. In the earlier decisions of this

Court including Shrilekha Vidyarthi, the appointment of

District Government Counsel under the Manual has

been understood only as a professional engagement

of a legal practitioner. This contention is, therefore,

rejected.”

In State of U.P. & ors. vs. U.P. State Law Officers

Association & ors., reported in (1994) 2 SCC 204 wherein the

questions bearing on the profession of the lawyer, his relationship

with his client, and the relationship of the Government and for that

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W.P. (C) No. 8 of 2017

matter of all the public bodies with the lawyer they engage for

conducting their matters, also fell for consideration. The Hon’ble

Supreme Court observed:

“14. Legal profession is essentially a service-oriented

profession. The ancestor of today’s lawyer was no more

than a spokesman who rendered his services to the

needy members of the society by articulating their case

before the authorities that be. The services were

rendered without regard to the remuneration received or

to be received. With the growth of litigation, lawyering

became a full-time occupation and most of the lawyers

came to depend upon it as the sole source of livelihood.

The nature of the service rendered by the lawyers was

private till the Government and the public bodies started

engaging them to conduct cases on their behalf. The

Government and the public bodies engaged the

services of the lawyers purely on a contractual basis

either for a specified case or for a specified or an

unspecified period. Although the contract in some cases

prohibited the lawyers from accepting private briefs, the

nature of the contract did not alter from one of

professional engagement to that of employment. The

lawyer of the Government or a public body was not its

employee but was a professional practitioner engaged

to do the specified work. This is so even today, though

the lawyers on the full-time rolls of the Government and

the public bodies are described as their law officers. It is

precisely for this reason that in the case of such law

officers, the saving clause of Rule 49 of the Bar Council

of India Rules waives the prohibition imposed by the

said rule against the acceptance by a lawyer of a full-

time employment.”

In Souvik Mukherjee Vs. State of West Bengal & ors,

reported in 2014 AIR (Cal) 85, the Hon’ble Calcutta High Court has

held that an advocate can under no circumstances automatically

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W.P. (C) No. 8 of 2017

cease to be an advocate unless specific order is passed by the Bar

Council in accordance with law removing and/ or suspending the

name of the said advocate from the roll of the concerned Bar Council

and that it is the Bar Council which is the competent authority to take

any decision in respect of an enrolled advocate and not the Public

Service Commission.

[9] The term “advocate” is defined in Section 2 of the

Advocates Act, 1961 (hereinafter referred to as “the Act” as an

advocate entered in any roll under the provisions of the Act. Section

24 of the Act provides that a person shall be qualified to be admitted

as an advocate on a State roll, if he fulfils the conditions mentioned

therein. Every State Bar Council is duty bound under the provisions

of Section 17 of the Act to prepare and maintain a roll of advocates

whose names have been duly enrolled by it. The inference that can

be drawn, is that a person continues to be an advocate as long as his

name continues to be entered in the roll of a State Bar Council. In

other words, a person continues to be an advocate unless and until

his name is removed from the State roll either under the provisions of

Section 26-A or 41 of the Act. Under Section 30 of the Act, an

advocate is entitled as of right to practise throughout the territories of

India subject to the conditions mentioned therein. The advocates can

be broadly categorised into five -one, an advocate doing his

independent practice in any of the courts as mentioned in Section 30

of the Act depending upon his capacity, expertise, convenience,

choice etc; two, an advocate who has been appointed as the

Government Advocate or the Public Prosecutor or the Law Officer of

an institution like Government, company, corporation etc. as a regular

employee on payment of salary and other allowances; three, an

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W.P. (C) No. 8 of 2017

advocate who has been engaged as the Standing Counsel for a

State/Union of India or any other Governmental agencies on payment

of retainer plus fees as agreed between the parties; four, an

advocate who has been engaged as OSD (Legal) on contract basis

on payment of monthly remuneration and five, an advocate who has

been engaged as part-time employee with the consent of the State

Bar Council like the one who takes up teaching of law under the

provisions of the Advocates (Right to Take Up Law Teaching) Rules,

1979. So far as the advocates falling under the categories-one, two,

three and five are concerned, there is no any dispute at all and the

dispute has arisen only in respect of category-four namely

engagement of an advocate as OSD (Legal) on contract basis on

payment of monthly remuneration like the present case.

In exercise of power conferred under the provisions of the

Act, the BCI Rules have been made by the Bar Council of India, of

which Chapter-II of Part-VI relating to Standards of professional

conduct and etiquette, is relevant for the present case. The relevant

rules 43 and 49 are reproduced herein below;

“43. An Advocate who has been convicted of an offence

mentioned under section 24A of the Advocates Act or

has been declared insolvent or has taken full time

service part time service or engages in business or any

avocation inconsistent with his practising as an advocate

or has incurred any disqualification mentioned in the

Advocates Act or the rules made thereunder, shall send

a declaration to that effect to the respective State Bar

Council in which the advocate is enrolled, within ninety

days from the date of such disqualification. If the

advocate does not file the said declaration or fails to

show sufficient cause for not filing such declaration

provided thereof, the Committee constituted by the State

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Bar Council under rule 42 may pass orders suspending

the right of the advocate to practise.

Provided that it shall be open to the Committee to

condone the delay on an application being made in this

behalf:

Provided further that an advocate who had after the

date of his enrolment and before the coming into force

of this rule, become subject to any of the

disqualifications mentioned in this rule, shall within a

period of ninety days of the coming into force of this rule

send declaration referred to in this rule to the respective

State Bar Council in which the Advocate is enrolled and

on failure to do so by such Advocate all the provisions of

this rule would apply.

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 employment, intimate the fact to the Bar Council

on whose roll his name appears, and shall thereupon

cease to practise as an advocate so long as he

continues in such employment.”

The case of the petitioners is that after their appointment as

the OSD (Legal), the private respondent Nos. 6 & 7 stopped

practising as advocates or in other words, they ceased to practise as

advocates in terms of Rule 49 of the BCI Rules and therefore, they

did not possess the essential qualification of not less than 10 (ten)

years in practice as an advocate. As has been stated hereinabove

and under the provisions of Section 30 of the Act, an advocate is

entitled as of right to practise throughout the territories subject to the

conditions mentioned therein. However, the term “practice” or

“practise” is not defined in the Act and is relevant in the context of

Rule 49 of the BCI Rules which provides that an advocate shall not be

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a full time salaried employee of any person, government, firm,

corporation or concern, so long as he continues to practise. The

expression “full time salaried employee” is ambiguous. Does it mean

an employee appointed on regular basis or even a part-time

employee? In Rule 49 of the BCI Rules, an exception was carved out

earlier that a “law officer” of the Central Government or of a State or

of a body corporate who is entitled to be enrolled under the rules of

the State Bar Council, shall not be affected by the main provision of

rule 49 despite he being a full time salaried employee. By a resolution

dated 22-06-2001 which was published in the Gazette on 13-10-2001,

the Bar Council of India has deleted the said provision. However, the

Hon’ble Supreme Court in Deepak Aggarwal case (supra) has held

that the said deletion has not materially altered the position insofar as

advocates who have been employed by the State Government or the

Central Government to conduct civil and criminal cases on their

behalf in the courts concerned. But it may be noted that the Hon’ble

Supreme Court has not gone into the issue as to what the expression

“full time salaried employee” will mean and moreover, the issue

involved herein has not been decided in any of the cases cited on

behalf of the petitioners.

[10] The whole controversy centres round the meaning of the

term “practice” and therefore, the observations made by the Hon’ble

Supreme Court, in this regard, in its decisions cited and relied upon

by the learned counsels appearing for the parties, are relevant and

important for purpose of deciding the issue involved herein. In State

of Punjab Vs. Gurdarshan Singh Grewal case (supra), the Hon’ble

Supreme Court has held that so long as the respondent therein

continues to be an advocate, he is entitled not only to practising the

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profession of law but he can seek part-time appointment subject to

permission by the State Bar Council. In Pravin C. Shah case

(supra), the Hon’ble Supreme Court quoted the observations of the

Allahabad High Court that the right to practise and the right to appear

in courts are not synonymous. An advocate may carry on chamber

practice or even practise in courts in various other ways, e.g., drafting

and filing of pleadings and vakalatnama for performing those acts.

For that purpose, his physical appearance in courts may not at all be

necessary. In Ex-Capt. Harish Uppal case (supra), the Hon’ble

Supreme Court has held that the right of the advocate to practise

envelops a lot of acts to be performed by him in discharge of his

professional duties. Apart from appearing in the courts, he can be

consulted by his clients; he can give legal opinion whenever sought

for; he can draft instruments, pleadings, affidavits or any other

documents; he can participate in any conference involving legal

discussions; he can work in any office or firm as a legal officer; he

can appear for clients before an arbitrator or arbitrators etc. In

Sushma Suri case (supra), the Hon’ble Supreme Court has held that

the test is not whether such person is engaged on terms of salary or

by payment of remuneration, but whether he is engaged to act or

plead on its behalf in a court of law as an advocate. In that event the

terms of engagement will not matter at all. What is of essence is as to

what such law officer engaged by the Government does- whether he

acts or pleads in court on behalf of his employer or otherwise. If he is

not acting or pleading on behalf of his employer, then he ceases to

be an advocate. If the terms of engagement are such that he does

not have to act or plead, but does other kinds of work, then he

becomes a mere employee of the Government or the body corporate.

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Therefore, the Bar Council of India has understood the expression

“advocate” as one who is actually practising before courts which

expression would include even those who are law officers appointed

as such by the Government or body corporate. In Deepak Aggarwal

case (supra), the Hon’ble Supreme Court has held that if a person

has been engaged to act and/or plead in court of law as an advocate

although by way of employment on terms of salary and other service

conditions, such employment is not what is covered by Rule 49 as he

continues to practise law but, on the other hand, if he is employed not

mainly to act and/or plead in a court of law, but to do other kinds of

legal work, the prohibition in Rule 49 immediately comes into play

and then he becomes a mere employee and ceases to be an

advocate. The bar contained in Rule 49 applies to an employment for

work other than conduct of cases in courts as an advocate. In this

view of the matter, the deletion of the second and third paragraphs by

the Resolution dated 22-06-2001 has not materially altered the

position insofar as advocates who have been employed by the State

Government or the Central Government to conduct civil and criminal

cases on their behalf in the courts are concerned. In other words, if

full-time service or part-time service taken by an advocate is

consistent with his practising as an advocate, no such declaration is

necessary. The factum of employment is not material but the key

aspect is whether such employment is consistent with his practising

as an advocate or, in other words, whether pursuant to such

employment, he continues to act and/or plead in the courts. If the

answer is yes, then despite employment he continues to be an

advocate. On the other hand, if the answer is in the negative, he

ceases to be an advocate. After going through these observations,

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this court is of the view that the scope of practice of the profession in

law appears to be very wide and is limited only to the exceptions

stipulated in Section-VII of Chapter-II of Part-VI of the BCI Rules and

the expression “full-time salaried employee” is to be construed to

mean only the employee appointed on regular basis for the reason

that in Rule 43 of the BCI Rules, both the expressions “full-time

service” and “part-time service” are used with the qualifying words

“inconsistent with his practising as an advocate”. In other words, an

advocate can do his practice in many ways involving many acts

relating to litigious and non-litigious matters as long as they are not

inconsistent with his practising as an advocate. Although these

expressions “full time service” and “part-time service” are different

concepts recognised in service jurisprudence, they are not one and

the same. While framing the BCI rules, if the Bar Council of India

intended to mean the said expressions as one and the same, there

was no need of using both the expressions simultaneously in the

Rule 43 thereof and its intention could have been specifically and

expressly reflected therein. In the present case, when the private

respondent Nos. 6 & 7 were engaged on contract basis on payment

of monthly remuneration, their names were still in the role of the Bar

Council of Manipur and continue to be so till date. They were not

appointed against the sanctioned posts nor were they appointed after

following due process of recruitment rules. They were not appointed

on regular basis nor were their service conditions regulated by the

provisions of an Act enacted by the State legislature under the Article

309 of the Constitution or the rules framed under the proviso to the

said provisions of the Constitution. Their service conditions were

governed by the terms and conditions incorporated in the contract.

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They were not given salary as that of a regular employee. As is

evident from the Memorandum of Cabinet, the purpose for which the

petitioners were engaged on contract basis, was to handle court

cases and legal matters pertaining to their respective Departments.

There is no any clause in the terms of the contract prohibiting them

specifically from continuing their practice. Their services were

required to be utilised for legal works and litigations and there is no

material on record to show that they were entrusted with any other

work which is inconsistent with their practice as the Advocates. The

materials on record have shown that they used to prepare affidavits,

render legal advice, draft pleadings, appear in courts etc. In respect

of the private respondent No. 7, the Home Department, Government

of Manipur issued an order dated 09-05-2012 to the effect that he

shall be allowed to continue to practise as an Advocate in any court

on behalf of the Home Department. So far as the private respondent

No.6 is concerned, he has placed reliance upon two certificates dated

20-08-2009 and 19-09-2012 issued by the Deputy Secretary (DP),

Government of Manipur to show that he has been allowed to conduct

cases and practise as an Advocate during his engagement.

Moreover, it appears that no one did raise any objection to their being

engaged as the OSD (Legal) and the High Court of Manipur Bar

Association has given a certificate to the effect that the private

respondent No. 7 has been continuing his practice as an Advocate

and he has 10 years practice as an Advocate. The Bar Council of

Manipur which is a party respondent herein, has not brought to the

notice of this court any disciplinary proceeding being initiated against

the private respondent Nos. 6 & 7 for their being engaged as the

OSD (Legal) for purpose of issuing an appropriate order removing or

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suspending them from being enrolled as the Advocates nor has it

passed any order against the private respondent Nos. 6 & 7 in

relation to their enrolment. Thus, it is seen that their names continue

to be in the roll of the Bar Council of Manipur and as has been stated

hereinabove, as long as their names continue to be on the roll of the

Bar Council, they will be deemed to have been continuing their

practice as Advocates and no one can presume that they have

ceased to practise as Advocates without any specific order being

passed by the concerned Bar Council in respect thereof. It is the

common knowledge that when the service of an advocate is required

by the institutions and in particular, the State Government, it is done

through an agreement or an order issued by it in that regard. This is

what has exactly happened in the present case. The fact that they

have been engaged on contract basis for litigious or non-litigious

matters, does not mean that they have discontinued to be Advocates

and such engagement is a part of the legal profession, as long as it is

not inconsistent with their practising as Advocates. The State of

Manipur being a small State, most of the Advocates are known each

other and although the petitioners appear to be fully aware of the fact

that the private respondent Nos. 6 & 7 were being engaged as the

OSD (Legal) at the relevant time, they have chosen, for the reasons

best known to them, not to lodge any complain to the concerned Bar

Council for taking appropriate action against them in accordance with

law. The facts and circumstances of the present case as narrated

hereinabove will clearly demonstrate that the engagement of the

private respondent Nos. 6 & 7 was purely on contract basis or part-

time basis, and not on regular basis, for legal works and litigations

which are consistent with their practising as Advocates. Therefore,

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this court is of the view that the present writ petition is devoid of any

merit and the provisions of Rule 49 of the BCI Rules will not be

attracted to the cases of the private respondent Nos. 6 & 7.

[11] For the reasons stated hereinabove, the present writ

petition fails and is accordingly dismissed with no order as to costs.

JUDGE

DevanandaDevanandaDevanandaDevananda