Point of Law : voluntarily suspended from legal practice then such a person cannot be said to have the legal right to practise as an Advocate.

JUDGMENT :

ALEXANDER THOMAS, J.

The final verdict rendered by the Division Bench of the Kerala Administrative Tribunal, Thiruvananthapuram Bench on 5.5.2021 in the instant original application, O.A.No. 880/2020 is under challenge before us in the instant Original Petition filed under Arts.226 and 227 of the Constitution of India.

2. The sole petitioner in the Original Petition is the sole applicant in the O.A. and the respondents in the OP are the respondents in the O.A..

3. Heard Sri.N.Asok Kumar, learned counsel appearing for the petitioner in the O.P./sole applicant in the O.A., Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader appearing for respondents 1 & 2 in the O.P./R-1 & R-2 in the OA, Sri.P.C.Sasidharan, learned Standing Counsel for the Kerala Public Service Commission appearing for R-3 in the O.P/R-3 in the O.A. and Sri.Nirmal V.Nair, learned Advocate appearing for contesting respondents 4 to 7 in the O.P./R-4 to R-7 in the O.A.

4. The main issue posed before us in this OP is as to whether a serving Government employee, who had earlier secured enrollment as an Advocate in terms of the provisions contained in the Advocates Act, and who had later suspended his legal practice for taking up the above Government employment, can be treated as a “member of the Bar” for the purpose of selection and appointment as Assistant Public Prosecutor Grade II. Our answer to the abovesaid issue is in the negative and thus against the petitioner in the OP. The reasonings for arriving at the abovesaid conclusion will be dealt with hereunder. The original petitioner herein/original applicant will be referred for convenience as “the applicant”. The respondent Kerala Public Service Commission will be referred for convenience as “PSC”.

5. A brief reference to the factual aspects in this case would be pertinent and relevant. According to the applicant, she had secured a degree in law from the University of Calicut and thereafter she had duly got herself enrolled as Advocate before the Bar Council of Kerala on 30.12.2007, in terms of the provisions contained in the Advocates Act, 1961 and the rules framed thereunder. According to her, she has commenced practice as an Advocate in the courts at Alappuzha, including the criminal courts there. Later she got appointment as Lower Division Typist (LDT) in the Excise Department of the Government of Kerala and pursuant to the said appointment order, she has joined Government service as LDT on 16.10.2012. It is also her admitted case that before that, she had given the requisite application before the Bar Council of Kerala and had got her legal practice suspended in terms of the provisions contained in the Advocates Act and the Bar Council of India Rules and that the abovesaid voluntary suspension from legal practice was rendered on 10.10.2012. The last date of submission of the application as per Anx.A-1 notification dated 30.8.2017, was upto 4.10.2017.

6. The 3rd respondent PSC had issued Anx.A-1 selection notification dated 30.8.2017, inviting applications from eligible and qualified candidates for appointment as Assistant Public Prosecutor Gr.II (APP Gr.II) in the State of Kerala. The qualifications prescribed to hold the post of APP Gr.II as per the rules and as per clause 7 of Anx. A-1 selection notification are as follows:

“i. Must be a Graduate in Law.

ii. Must be member of the Bar and must have had not less than three years of active practice in Criminal Courts.

Note : Certificate of enrollment issued by the Bar Council and 3 years experience certificate of active practice in criminal courts as on First January 2017 issued by the Judicial Officer not below the rank of a First Class Judicial Magistrate should be produced.”

(see page 29 of the paper book of the OP).

7. According to the applicant, she had earlier secured the certificate of enrollment issued by the Bar Council of Kerala and she had active practice in the criminal courts since 30.12.2007 and that she had also secured the necessary certifi