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CASE NO.: Appeal (civil) 5395  of 1997

PETITIONER: SATISH KUMAR SHARMA

       Vs.

RESPONDENT: THE BAR COUNCIL OF HIMACHAL PRADESH

DATE OF JUDGMENT:       03/01/2001

BENCH: S.V.Patil, R.C.Lahoti

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

     J U D G M E N T

     Shivaraj V.  Patil, J.

     In  this  appeal,  the   appellant  has  assailed  the resolution  of  the respondent dated 12.05.1996  withdrawing his  enrolment  as  well  as the order  of  the  High  Court upholding it.

     The facts, which are considered necessary and relevant for  the  purpose  of  disposal  of  this  appeal,  are  the following:

     After  securing  LL.B.  in 1975-76 the  appellant  was appointed as Assistant (Legal) by the Himachal Pradesh State Electricity  Board  (for short the Board).  The said  post was  re-designated  as Law Officer Grade-II in 1978.   The Board,  by its order dated 6.9.1983 allowed the appellant to act  as  an advocate of the Board and also ordered that  the expenditure  of  his  getting licence from the  Bar  Council shall  be  met  by  the   Board.   His  application  seeking enrolment  was  sent  by the Secretary of the Board  to  the respondent  on 13.10.1983.  The Secretary of the  respondent by letter dated 28.3.1984 informed the Board that the Office Order  dated  6.9.1983  of  the   Board  did  not  meet  the requirements  of  the  Rules and that the  appellant  should first  be designated as a Law Officer.  The respondent  also requested the Board to send the order of appointment and the terms  of  such appointment of the appellant.  The Board  by order  dated  11.6.1984  modified the  earlier  order  dated 6.9.1983  and declared the appellant as a Law Officer of the Board.  On 5.7.1984 another order was passed by the Board by changing  the  designation  of  the  post  of  Law  Officer Grade-II   as  Law  Officer.   It  is,  thereafter,   the respondent  issued a certificate of enrolment dated 9.7.1984

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to  the  appellant.   By  Office Order  dated  8.5.1991  the appellant  was  given ad hoc promotion to the post of  Under Secretary  (Legal)- cum-Law Officer, which order also stated that  he  would  continue to work in the Legal Cell  of  the Secretariat  of  the  Board.  Further on  14.1.1993  he  was promoted  as  Under  Secretary (Legal)- cum-Law  Officer  on officiating basis.

     By  its  communication dated 13.9.1993 the  respondent called  upon the appellant to appear before the Committee on 28.9.1993  along  with all connected  documents/evidence  in regard   to  his  enrolment  as   an  advocate.   The   said communication   indicated  that  in   the  meeting  held  on 10.7.1993  the  respondent considered the  matter  regarding enrolment  of certain Law Officers and decided to constitute a committee to examine the same.  Thereafter on 27.12.1993 a show cause notice was sent to the appellant requiring him to explain  as to why his enrolment No.  HIM/35/1984 issued  to him  be not withdrawn.  Reply to the said show cause  notice was  to reach by 30.12.1993.  After taking extension of time twice  the  appellant  sent  a  communication  on  25.2.1994 stating  that  there  was no ground for  withdrawal  of  his enrolment  reserving his right to file a detailed reply.  He also  stated  that  he would like to be  represented  by  an advocate.

     The  appellant  was  promoted   as  Deputy   Secretary (Legal)-cum- Law Officer on ad hoc basis by the Office Order of the Board dated 30.1.1995 and he was required to continue to work in the Legal Cell.

     In the meeting held on 12.5.1996 the respondent passed a  resolution  unanimously withdrawing the enrolment of  the appellant   with  immediate  effect   and  directed  him  to surrender   the  enrolment  certificate   within   15   days therefrom.  The relevant and material part of the resolution reads:  -

     ....

     Shri  Satish  Sharma  is a permanent employee  of  the HPSEB  and  presently  he  is holding  the  post  of  Deputy Secretary  in  the HPSEB and is in continuous employment  of the  HPSEB  and  under  Rule  49 he is  debarred  to  be  an Advocate.    Moreover,  he  was   enrolled  as  an  Advocate initially  when he was appointed as Law Officer.  Thereafter he  had  been  getting promotions and working  as  Assistant Secretary/Deputy  Secretary  in the HPSEB.  In fact  he  was required  to  intimate  the  said fact to  the  Bar  Council immediately  on  promotion and should have  surrendered  the licence but he failed to do so.

     Under these circumstances there is no justification to retain  Shri Satish Sharma on the Roll of the Bar Council as an Advocate.

     It   is,  thus,  resolved   that  the  Enrolment   No. HIM/45/1984 be and is hereby withdrawn with immediate effect and  he  is ordered to surrender his  Enrolment  Certificate within a period of 15 days.

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     It  is  this resolution, validity and  correctness  of which  was challenged by the appellant before the High Court in  the  writ  petition contending that  the  enrolment  was validly  granted to him as he fulfilled the requirements  of relevant  provisions  of the Advocates Act, 1961;   he  also pointed out that advocates, who obtained enrolment and later on  joined  State  Government  service  in  the  Prosecution Department,  have  continued to retain their  enrolment  and defend  the  State Government in the courts;  no rules  have been  framed  by the respondent preventing persons like  the appellant  from  getting  enrolled, it was not open  to  the respondent  to  withdraw  the   certificate  of   enrolment; according  to  him  Rule 49 of the Rules framed by  the  Bar Council  of India has been misconstrued and misunderstood by the  respondent.   In  short  it   was  contended  that  the respondent  had  no jurisdiction to withdraw  the  enrolment certificate granted to the appellant.  The Division Bench of the  High  Court by an elaborate and well- considered  order dealing with all aspects dismissed the writ petition.  Hence the  appellant has filed this appeal assailing the order  of the  respondent  as  well  as the order of  the  High  Court affirming it.

     Learned  senior  counsel  for   the  appellant,  while reiterating  the  contentions urged before the  High  Court, submitted  that the High Court failed to appreciate that the second  para  of the Rule 49 carves out an exception to  the Bar  created  by  Rule 49, precluding a full  time  salaried employee from practicing as an advocate;  the said exception was  subject  only to one limitation, i.e., an  express  bar created  by Rules, made by any State Bar Council in exercise of  its  powers  under Section 28(2)(d)  read  with  Section 24(1)(e)  of the Advocates Act, 1961;  since the  respondent has not framed any rules expressly barring such Law Officers from  being enrolled as advocates the appellant was entitled for  enrolment.   According to the learned counsel the  High Court  also failed to note that it was not a case of refusal of  enrolment to a Law Officer but it was a case wherein the respondent  was  estopped from canceling the certificate  of enrolment  issued to the appellant by the very respondent as early  as on 9.7.1984;  therefore, cancellation of enrolment after  almost  a  decade  and half  based  on  an  erroneous interpretation  of  Rule 49 of the Rules of Bar  Council  of India, was unjust.  It was also urged that the appellant had placed  all  the  material   before  the  respondent  before obtaining  his  enrolment  certificate   and  there  was  no concealment  of facts on his part and that the appellant was discriminately  treated.  The learned counsel added that the impugned  action  of  the respondent was unwarranted  as  it amounted  to  a  punishment  of removal of the  name  of  an advocate  from  the  Roll  of   the  State  Bar  Council  as postulated by Section 35(d) of the Act without following the procedure.

     Per  contra,  the  learned  counsel  representing  the respondent  made submissions supporting the orders  impugned in  this appeal.  According to him the appellant was not  at all  entitled for enrolment as an advocate having regard  to Rule  49 of the Bar Council of India Rules in the absence of any  enabling provision to a full time salaried employee for enrolment  as  an advocate.  The learned  counsel  submitted when the appellant was not at all entitled to be enrolled as an  advocate the action taken by the respondent after  lapse of  some  time is of no consequence and the delay in  taking action  in a case like this itself does not give  protection

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so  as to sustain the enrolment.  He further submitted  that there  was  no  discrimination as alleged by  the  appellant looking  to  the nature of duties of the prosecutors in  the State Departments and the appellant.

     We  have carefully considered the submissions made  by the  learned counsel for the parties.  We consider it useful and  appropriate  to look at the relevant provisions of  the Advocates  Act,  1961 (for short the Act) and of  the  Bar Council  of  India  Rules  (for short  the  Rules)  before examining  the  rival  contentions  on  their  merits.   The provisions are:  -

     Section 24.  Persons who may be admitted as advocates on  a  State roll.   (1) subject to the provisions of  this Act,  and  the  rules  made thereunder, a  person  shall  be qualified  to be admitted as an advocate on a State roll, if he fulfills the following conditions, namely

     (a) ........  (b) ........  (c) ........  (d) ........

     (e)he  fulfills  such  other   conditions  as  may  be specified  in the rules made by the State Bar Council  under this Chapter;

     xxx xxx xxx

     Section  28.  Power to make rules.   (1) A State Bar Council  may  make rules to carry out the purposes  of  this Chapter.

     (2)  In  particular  and   without  prejudice  to  the generality  of  the foregoing power, such rules may  provide for

     (a) ........  (b) ........  (c) ........

     (d)  the  conditions subject to which a person may  be admitted as an advocate on any such roll;

     (3) No rules made under this Chapter shall have effect unless they have been approved by the Bar Council of India.

     xxx xxx xxx

     Section  49.   General  power of the Bar  Council  of India  to  make rules.   (1) The Bar Council of  India  may make  rules for discharging its functions under this Act and in particular, such rules may prescribe.

     (a) ........

     (ab)  qualifications  for membership of a Bar  Council and the disqualifications for such membership;

     (ac)  .........  (ad) .........  (ae) .........   (af) .........  (ag) the class or category of persons entitled to be enrolled as advocates;

     (ah) the conditions subject to which an advocate shall have the right to practice and the circumstances under which a  person  shall be deemed to practise as an advocate  in  a

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court;

     (b) .........

     (c)   the  standards  of   professional  conduct   and etiquette to be observed by advocates;

     xxx xxx xxx

     Chapter II of the Rules made under Section 49(1)(c) of the  Act read with the proviso thereto deals with  standards of  professional conduct and etiquette.  Preamble of Chapter II reads:  -

     An advocate shall, at all times, comport himself in a manner  befitting  his status as an officer of the Court,  a privileged member of the community, and a gentleman, bearing in  mind that what may be lawful and moral for a person  who is  not  a member of the Bar, or for a member of the Bar  in his  non-professional capacity may still be improper for  an Advocate.   Without  prejudice  to  the  generality  of  the foregoing  obligation,  an Advocate shall fearlessly  uphold the  interests of his client, and in his conduct conform  to the  rules  hereinafter  mentioned  both in  letter  and  in spirit.   The rules hereinafter mentioned contain canons  of conduct  and  etiquette adopted as general guides;  yet  the specific  mention thereof shall not be construed as a denial of  the  existence  of other equally imperative  though  not specifically mentioned.

     Rule  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 such 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.

     Nothing  in this rule shall apply to a Law Officer  of the  Central  Government  of  a   State  or  of  any  Public Corporation  or body constituted by statute who is  entitled to be enrolled under the rules of his State Bar Council made under Section 28(2)(d) read with Section 24(1)(e) of the Act despite his being a full-time salaried employee.

     Law  Officer  for  the purpose of this  Rule  means  a person  who is so designated by the terms of his appointment and  who, by the said terms, is required to act and/or plead in Courts on behalf of his employer.

     In  terms of Section 24 of the Act, a person shall  be qualified  to be admitted as an advocate if he satisfies the provisions of the Act, the Rules and the rules, if any, made by the State Bar Council besides fulfilling other conditions as  laid down in this Section.  Even if no rules were framed under Section 28(2)(d) read with Section 24(1)(e) of the Act by  a  State  Bar Council, enrolment of a  person  shall  be subject to the provisions of the Act and the Rules.  Section 28 has conferred rule making power on a State Bar Council to carry  out the purposes of Chapter III of the Act.  A  State

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Bar  Council  can  prescribe conditions subject to  which  a person  may  be  admitted  on any such  roll  under  Section 28(2)(d) of the Act.  In the present case the respondent has not  framed  rules in this regard.  Under Section 49 of  the Act  the  Bar Council of India has power to make  rules  for discharging  its functions under the Act.  Rules are  framed by  the Bar Council of India exercising the powers conferred on  it.  In the Preamble, extracted above, to the Rules made under  Section  49(1)(c)  of the Act read with  the  proviso thereto  it  is stated that an advocate shall at  all  times conduct  himself  in a manner befitting to his status as  an officer  of the court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral  for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be  improper for an advocate.  It is further stated that  an advocate shall fearlessly uphold the interest of his client, and  in his conduct conform to the rules.  As is clear  from the  Rules contained in Chapter II of the Rules an  advocate has  a  duty to court, duty to the client, duty to  opponent and  duty to colleagues unlike a full time salaried employee whose  duties  are specific and confined to his  employment. Rule  49 has a specific purpose to serve when it states that an  advocate  shall not be a full time salaried employee  of any  person,  government, firm, corporation or concern.   As already  noticed  above, Section 24(1)  specifically  states that a person in addition to satisfying other conditions has also  to  satisfy the provisions of the Act and  Rules.   In other  words, the Rules made by Bar Council of India are  to be  satisfied.   Mere  non framing of rules by a  State  Bar Council under Section 28(2)(d) read with Section 24(1)(e) of the Act cannot dispense with obedience to Rule 49.

     The  profession  of law is called a noble  profession. It does not remain noble merely by calling it as such unless there is a continued, corresponding and expected performance of  a  noble profession.  Its nobility has to be  preserved, protected  and  promoted.  An institution cannot survive  in its  name  or  on  its  past glory  alone.   The  glory  and greatness  of  an institution depends on its  continued  and meaningful   performance  with  grace   and  dignity.    The profession  of law being noble and honourable one, it has to continue  its meaningful, useful and purposeful  performance inspired by and keeping in view the high and rich traditions consistent  with  its grace, dignity, utility and  prestige. Hence  the  provisions of the Act and Rules made  thereunder inter  alia  aimed at to achieve the same ought to be  given effect  to in their true spirit and letter to maintain clean and  efficient Bar in the country to serve cause of  justice which again is noble one.

     This  court  in  Dr.   Haniraj L.   Chulani  vs.   Bar Council  of  Maharashtra  &  Goa , while  dealing  with  the validity  of  Rule 1 of the Maharashtra and Goa Bar  Council Rules  relating  to  enrolment   of  Advocates   eligibility conditions,  in para 20 has observed that ‘legal  profession requires  full  time attention and would not countenance  an Advocate  riding two horses or more at a time.  That was  a case  where a medical practitioner wanted to enroll  himself as  an Advocate after obtaining a degree of Bachelor of Law. Rules   framed  by  the   Maharashtra  Bar  Council   denied simultaneous   practice  of   another  profession  alongwith practice  of  law.  It was contended for the appellant  that even  though he was a practicing surgeon, if given entry  to legal profession, he would give an undertaking that he would

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not  practice medicine during the court hours.  Such a  plea was  not accepted stating that he would be torn between  two conflicting  loyalties;   loyalty to his clients on the  one hand  and  loyalty to his patients on the other.  The  court proceeded  to  say It is axiomatic that an advocate has  to burn  the  midnight  oil for preparing his cases  for  being argued  in  the court next day.  Advocates face  examination every  day when they appear in courts.  It is not as if that after court hours an advocate has not to put in hard work on his  study table in his chamber with or without the presence of  his  clients who may be available for consultation.   To put  forward  his  best  performance as an  advocate  he  is required to give wholehearted and full-time attention to his profession.   Any flinching from such unstinted attention to his  legal profession would certainly have an impact on  his professional  ability and expertise.  If he is permitted  to simultaneously  practise as a doctor then the requirement of his  full-time attention to the legal profession is bound to be   adversely  affected.    Consequently  however   equally dignified  may  be  the profession of a  doctor,  he  cannot simultaneously  be  permitted  to practise law  which  is  a full-time  occupation.   It  is for ensuring  the  full-time attention  of  legal practitioners towards their  profession and  with a view to bringing out their best so that they can fulfill  their role as an officer of the court and can  give their  best  in  the  administration of  justice,  that  the impugned  rule  has been enacted by the State  Legislature. The  High  Court  also has referred to and  relied  on  this judgment.

     With  this background we proceed to consider merits of the contentions raised by the respective parties.

     There appeared to be difficulty for the Advocates even to  take  up  teaching of law as full time  employees.   The Central  Government  in exercise of the powers conferred  by Section  49-A of the Act framed the Advocates (Right To Take Up  Law  Teaching) Rules, 1979.  As per Rule 3 of  the  said Rules, a practicing Advocate has a right to take up teaching of   law  in  any   educational  institution  affiliated  to university  so long as teaching of law does not exceed three hours  a day and such employment may be deemed to be a  part time employment.

     Since  the terms of appointment, nature of duties  and service  conditions  relating  to the  appellant  have  also bearing  in  resolving  the controversy,  it  is  considered appropriate  to  briefly refer to them.  By  the  Memorandum dated  24.6.1976, the appellant was appointed for the  first time  by  the Board to the post of Assistant (Legal) in  the pay-scale  of  Rs.   225-15-300-20- 500 + 50  per  month  as special  pay.  In the said Memorandum, it is stated that the post  was  temporary  and  his services were  liable  to  be terminated  at  any time without any reasons being  assigned to;   his  confirmation  in the permanent  vacancy  depended inter alia on his work and conduct and he will have to serve anywhere  in  the  organization of  Himachal  Pradesh  State Electricity  Board.  The appellant accepting these terms  of appointment,  joined  service of the Board.  By  the  Office Order  dated  6.9.1983, the Board was pleased to  allow  the appellant,  Law Officer, Grade-II to act as Advocate of  the Board  in the existing scale of Rs.  700-1200/-.  The  Board was  further  pleased  to  order that  the  expenditure  for getting  enrolment  as  an Advocate shall be  borne  by  the Board.   In  response  to  the   application  made  for  the

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enrolment  of the appellant as an Advocate, the Secretary of the  respondent  by  a letter dated 28.3.1984  informed  the appellant  that the Office Order dated 6.9.1983 of the Board did not meet the requirements of the Rules and that he first be designated as Law Officer.  Accordingly the Board, by its order  dated  11.6.1984  modifying its earlier  order  dated 6.9.1983,  declared him as Law Officer of the Board in the existing  pay-scale.   The  Board passed one more  order  on 5.7.1984  changing  the  designation  of the  post  of  Law Officer  (Grade-II) as Law Officer with immediate  effect and  appointed the appellant as Law Officer in the  existing pay  scale.   In  the said order it is also stated  that  by virtue  of  the  said  appointment the  appellant  shall  be required  to act and plead in any court of law on behalf  of the  Board.   It  is  only  thereafter,  the  appellant  was enrolled  as an advocate on 9.7.1984 by the respondent.   By the  Office  Order dated 8.5.1991 the Board promoted him  as Under Secretary (Law)-cum-Law Officer in the given pay-scale purely  on ad hoc basis making it clear that the said ad hoc promotion  would  not confer any right on the  appellant  to claim seniority in that Grade.  In the said order it is also stated  that  he will continue to work in the Legal Cell  of the  Secretariat of the Board.  He was promoted on 14.1.1993 on  the  recommendation  of Class-I  Departmental  Promotion Committee   on  officiating  basis  in  the   pay-scale   of Rs.3000-4500 plus Rs.400 as special pay per month indicating that  he would continue to work in the same Legal Cell.   By order dated 30.1.1995 the Board again promoted him as Deputy Secretary   (Law)-cum-Law  Officer  in   the  pay-scale   of Rs.3700-5000  plus Rs.400 as special pay per month purely on ad hoc basis with the other conditions remaining the same.

     This Court on 10.8.2000 passed the following order:-

     During  the course of hearing, a question arose as to whether the appellant, while serving on full time basis with Himachal  Pradesh State Electricity Board, is confining  his work  only to acting as an Advocate for and on behalf of the Board, including appearances in the Court, or has some other duties  also  assigned  to  him in his  capacity  as  Deputy Secretary-cum-Law Officer.  Mr.  V.A.  Bobde, learned senior counsel  appearing  on behalf of the appellant submits  that since  this issue never arose before, he shall have to  seek instructions  and file an appropriate affidavit supported by relevant  documents.   Four weeks time, as prayed  for,  is granted for the purpose.  An advance copy shall be furnished to  the  learned counsel opposite who will have  four  weeks thereafter to file response, if any.

     List after nine weeks.

     Pursuant  to  the said Order, the appellant has  filed the  affidavit  on 12.09.2000.  The affidavit shows that  he was  further promoted as Additional Secretary (Law).  In the affidavit he has stated that his duties with the Board right from  Law  Officer to Additional Secretary (Law)  have  been exclusively  those of an Advocate and he had been personally appearing  before various courts.  It is also stated that he was/is heading Legal Cell/Law Section, the duties in respect of  which  were  stipulated in the  Regulation  of  Business issued  by the Board on April 4, 1974 which were amended  in February,  2000.   As far as the Legal Cell  was  concerned,

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they  remained the same.  Regulation of Business relating to C-Legal are as follows:-

     25.   Every  wing  of  the Board  shall  consult  Law Section, whenever it is proposed to:-

     (i)  issue  a  statutory regulation,  notification  or order, or

     (ii) sanction under a statutory power the issue of any regulation,  by law, notification or order by a  subordinate authority;  or

     (iii)  submit  to  Government   any  draft   statutory regulation,  notification  or order for issue by them;   the draft  shall be referred to the Law Section for opinion  and advice.

     26.(1) All Sections shall consult the Legal Section on :-

     (a)  any  general legal principles arising out of  any case and;

     (b)  the  construction of statutes, Arts,  Regulation, Statutory Orders and notifications etc.  etc.

     (c)  the institution or withdrawal of any  prosecution or   other   legal/quasi     legal   proceedings   including arbitration,  taxation proceedings, engagement of  counsels, their fee, etc.  etc.

     (d)  all  documents having legal implications,  except routine matters, may only be accepted after legal scrutiny.

     (2)  All  such references shall be accompanied  by  an accurate statement of the facts of the case and the point or points on which the advice of the Legal Section is desired.

     Looking  to  the various appointment/promotion  orders issued  by  the  Board to the appellant  and  Regulation  of Business relating to Legal Cell of the Board aforementioned, we can gather that :-

     (1) the appellant was a full time salaried employee at the time of his enrolment as an Advocate and continues to be so getting fixed scales of pay;

     (2)  he  is  governed  by the  conditions  of  service applicable   to  the  employees  of  the   Board   including disciplinary  proceedings.   When asked by us,  the  learned counsel for the appellant also confirmed the same;

     (3) he joined the services of the Board as a temporary Assistant (Legal) and continues to head the Legal Cell after promotions, a wing in the Secretariat of the Board;

     (4)  his duties were/are not exclusively or mostly  to act or plead in courts;  and

     (5)  promotions were given from time to time in higher pay-  scales  as is done in case of other employees  of  the

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Board  on  the  basis  of  recommendation  of   Departmental Promotion Committee.

     On a proper and careful analysis, having regard to the plain  language and clear terms of Rule 49 extracted  above, it is clear that:  -

     (i)  the  main  and  opening  paragraph  of  the  Rule prohibits  or  bars  an  advocate from  being  a  full  time salaried   employee  of  any   person,   Government,   firm, corporation  or concern so long as he continues to  practice and  an  obligation is cast on an Advocate who takes up  any such  employment  to intimate the fact to the concerned  Bar Council  and  he  shall  cease to practice  so  long  as  he continues in such employment;

     (ii)  para  2  of  the Rule is in  the  nature  of  an exception  to the general Rule contained in main and opening paragraph  of  it.   The bar created in para 1 will  not  be applicable  to  Law Officers of the Central Government or  a State  or  any public corporation or body constituted  by  a statute,  if  they are given entitlement under the Rules  of their  State  Bar  Council.  To put it in  other  way,  this provision  is an enabling provision.  If in the Rules of any State  Bar  Council,  a  provision  is  made  entitling  Law Officers  of the Government or authorities mentioned  above, the  bar  contained in Rule 49 shall not apply to  such  Law Officers despite they being full time salaried employees;

     (iii)  not every Law Officer but only a person who  is designated  as  Law Officer by the terms of his  appointment and who by the said terms is required to act and/or plead in courts  on  behalf of his employer can avail the benefit  of the exception contained in para 2 of Rule 49.

     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 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

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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.  The  decision in  Sushma Suri vs.  Govt.  of National Capital Territory of Delhi  and Another , 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 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 practicing  before courts for his employee.  Para 10 of  the said  judgment reads :- 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

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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   practicing  before  courts   which expression  would  include even those who are  law  officers appointed  as  such  by the Government or  body  corporate. [emphasis supplied]

     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.

     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. Hence,   the   appellant   cannot   take  benefit   of   the aforementioned judgment.

     The  argument  of the learned senior counsel  for  the appellant  was  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.  This argument 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.   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  on misunderstanding was corrected.

     We  find  no  merit  in  the  ground  urged  that  the appellant  was discriminated against the prosecutors and the Government pleaders.  The duties, nature of work and service conditions  of  the appellant, details of which are  already given above, are substantially different from the duties and

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nature  of  work  of  prosecutors  and  Government  pleaders particularly  in  relation to acting and pleading in  court. Thus  the appellant stood on a different footing.  The  High Court  in paragraphs 24-26 has dealt with this aspect of the case  and rightly rejected the argument based on the  ground of discrimination.

     The  last  and 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. This  order  does  not  stand in the way  of  the  appellant seeking enrolment if he is otherwise eligible and entitled.

     In  the light of the facts stated and discussions made above, we do not find any merit in this appeal.  Hence it is dismissed.  No cost.