2001 Supreme(SC) 6

2001(1) Supreme 56
SUPREME COURT OF INDIA
(From Himachal Pradesh High Court)
Dr. A.S. Anand, CJI., R.C. Lahoti & Shivaraj V. Patil, JJ.
Satish Kumar Sharma -Appellant
versus
The Bar Council of Himachal Pradesh -Respondent
Civil Appeal No. 5395 of 1997
Decided on 3-1-2001
Counsel for the Parties :
For the Appellant : Vinod A. Babde, Sr. Advocate, K.K. Lahiri, B.K. Mishra, Ms. Safali Shukla, Ejaz Maqbool, Advocates.
For the Respondent : Atul Sharma and M.A. Chinnaswamy, Advocates.

VERY IMPORTANT POINT
Unless a concerned State Bar Council has framed rules entitling Law Officers to enroll as Advocates even though they are full-time employees, they are not entitled to enrolment.

Headnote:(i) Advocates Act, 1961-Sections 24 and 28-Bar Council of India Rules-Rule 49-Entitlement to be enrolled as Advocate-Full time Law Officer of Central/State Government/Corporation-Unless concerned State Bar Council has framed rules entitling law officers to enroll as Advocates even though they are full time employees they are not entitled to enrolment.

       It is an admitted position that no rules were framed by the Bar Council of Himachal Pradesh entitling a Law Officer appointed as a full time salaried employee coming within the meaning of para 3 of Rule 49 to enroll 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 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 pre-dominant. 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 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 . (Para 18)

       The argument that what is not prohibited may be taken as permitted and when the appellant satisfied the requirements of Section 24, he was entitled for enrolment overlooks a positive requirement as already stated above contained in para 2 of Rule 49 that unless a concerned State Bar Council has framed rules entitling Law Officers to enroll as Advocates even though they are full-time employees, they are not entitled to enrolment. (Para 21)

       (ii) Advocates Act, 1961-Sections 24 and 28-Bar Council of India Rules-Rule 49-Entitlement to enrolment-Law Officer of State/Central Government-Appellant full time law officer of Himachal Pradesh Electricity Board-Enrolled as advocate-Withdrawal/cancellation on ground appellant is full time paid employee-Plea of estoppel-On ground already 10 years passed after enrolment-Not tenable-Appellant suffered threshold bar-Enrolment itself was clearly contrary to Rule 49-Cancellation justified-He cannot be allowed practice retaining seniority even if he gives up his full time employment since enrolment was non est-He can apply afresh for enrolment giving up his full time employment.

       In the present case on facts narrated above relating to his employment as well as in the absence of rule made by the respondent entitling a Law Officer to enroll as an Advocate despite being a full time salaried employee, the appellant was not entitled to enrolment as an advocate. The contention that the respondent could not have cancelled enrolment of the appellant almost after a decade and half and that the respondent was estopped from doing so on the principle of promissory estoppel, did not impress us for the simple reason that the appellant suffered threshold bar and was not at all eligible to be enrolled as an Advocate and his enrolment itself was clearly contrary to Rule 49 of the Rules in the light of the facts stated above. Hence neither the principles of equity nor promissory estoppel will come to the aid of the appellant. Similarly, there is no substance in the argument of the learned counsel for the appellant that removal of the name of the appellant from the roll of the State Bar Council amounted to a punishment under Section 35(d) of the Act without following procedure. It is clear from the facts of the case that action was not taken against the appellant on the ground of misconduct by initiating any disciplinary proceedings. But in this case the very enrolment of the appellant as an advocate itself was contrary to law and he was not at all entitled for enrolment. By cancellation or withdrawal of enrolment things were only set right and the mistake committed misunderstanding was corrected. (Paras 20 and 21)

       Alternative submission of the learned counsel for the appellant was that in case the appellant gives up his full time employment or ceases to be employee of the Board, he may be allowed to practice maintaining his seniority as an advocate from the date of his enrolment on the rolls of the respondent; if the enrolment is cancelled or withdrawn he would lose the seniority for no fault of him. There is a difficulty in accepting this argument. When the appellant was not entitled for enrolment and his enrolment itself was opposed to law, such enrolment was non-est. Hence the question of maintaining his seniority on the rolls of the respondent does not arise. However, we make it clear that in case the appellant resigns or ceases to be a full time employee of the Board, it is open to him if so desired to apply afresh for enrolment as an advocate. (Para 23)

       (iii) Advocates Act, 1961-Sections 24 and 28-Bar Council of India Rules-Rule 49-Entitlement to be enrolled-Law Officer of Central/State Government/Corporations-Full time Law Officer of State Electricity Board-Refusal to enrolment -Plea of discrimination against prosecutors and Government pleaders-Untenable-Nature of work of prosecutors and Government pleaders different from service conditions of appellant-No discrimination. (Para 23)