Wednesday, 11 November 2020

Gujarat High Court Allows Persons Having Full Time/Part Time Jobs Having Law Degree To Get Enrolled, Enrolment Certificate Shall Be Withheld

 In such circumstances, referred to above, we read down

Rules 1 and 2 respectively of the Bar Council of Gujarat

(Enrollment) Rules so as to read that a person may be either in

full or part time service or employment or is engaged in any

trade, business or profession, who otherwise is qualified to be

admitted as an Advocate shall be admitted as an Advocate,

however, the enrollment certificate of such a person shall be

withheld with the Bar Council and shall lie in deposit with the

Council until the concerned person makes a declaration that the

circumstances mentioned in Rule 2 have ceased to exist and that

he or she has started his/her practice.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 15123 of 2019

TWINKLE RAHUL MANGAONKAR Vs UNION OF INDIA


CORAM:  THE CHIEF JUSTICE MR. VIKRAM NATH

and  MR. JUSTICE J.B.PARDIWALA

Date : 06/11/2020

(PER :  MR. JUSTICE J.B.PARDIWALA)

1. By this writ application under Article 226 of the

Constitution of India, the writ applicant has prayed for the

following reliefs;

“(A) that the Hon'ble Court be pleased to issue an

appropriate writ, order or direction and be pleased to quash

and set aside Rule 1 and Rule 2 of the Bar Council of

Gujarat (Enrollment) Rules to the extent they prohibit

admission of a person who is otherwise qualified to be

admitted as an advocate, but is either in full or part time

service or employment or is engaged in any trade, business

or profession, as an advocate:

Alternatively

the Hon'ble Court be pleased to read down Rule 1 and Rule

2 and declare that a person who is otherwise qualified to be

admitted as an advocate, but is either in full or part time

service or employment or is engaged in any trade, business

or profession, shall be admitted as an advocate, however

the enrollment certificate of such a person shall be withheld

with the Bar Council and shall lie in deposit with the

Council, until the advocate makes a declaration that the

circumstances mentioned in Rule 2 have ceased to exist and

that he continues to start his practice:

(B) that pending the hearing and final disposal of this

petition, the Hon'ble Court be pleased to direct the Bar

Council of Gujarat to accept application form of the Applicant

and permit the Applicant to take up the Bar Council

Examination.”

2. We need not state the facts of this litigation in details as

those have been stated in the order passed by this Court dated

06.10.2020. We quote the order as under;

“2. The gist of the case put up by the writ applicant, in her

own words, as pleaded in the memorandum of the writ

application, reads thus:

March 1996 The writ applicant obtained degree of

Bachelor of Commerce from Kolkata University. The writ


applicant has been living in Ahmedabad since 1996. The

writ applicant presently lives with her son, her retired father

and is the sole earning person in the family.

05.05.2009 The husband of the writ applicant who

was a journalist passed away. The writ applicant presently

lives with her son, her retired father and is the sole earning

person in the family.

* The Bar Council of India introduced the All India Bar

Examination, an exam which is mandatory for all law

students graduating from Academic Year 2009-10 onwards

and enrolled as advocates under Section 24 of the

Advocates Act, 1961. it is mandatory for an advocate to be

enrolled as such before taking the All India Bar

Examination. As per the Bar Council of India Rules, no

advocate enrolled under Section 24 of the Advocates Act,

1961 shall be entitled to practice under Chapter IV of the

Advocates Act unless such Advocate successfully passes

the All India Bar Examination conducted by the Bar Council

of India. The Bar exam is mandatory for all law students

graduating from Academic Year 2009-10 onwards and

enrolled as advocates under Section 24 of the Advocates

Act, 1961. It is mandatory for an advocate to be enrolled as

such before taking the All India Bar Examination. The exam

is applicable only for enrolled advocates. The Bar Council of

a state while enrolling a person as an advocate issues a

provisional permission to practice as an advocate for a

period of 2 years from the date of enrollment subject to filing

of an undertaking in the proforma to be submitted to the

State Bar Council. The Provisional Certificate remains valid

for 2 years or till the advocate passed the All India Bar

Examination whichever is earlier. In case the advocate does

not pass the examination within the said period, the

concerned person ceases to be an advocate till passing of All

India Bar Exam.

* The Bar Council of Gujarat, has framed the Bar

Council of Gujarat (Enrollment Rules) under Section 28(2)(d)

read with Section 24(1)(e) of the Advocates Act, 1961

(hereinafter referred to as “the Enrollment Rules”). As is

mentioned in Rule 1 of the Enrollment Rules, a person who

is otherwise qualified to be admitted as an advocate but is

either in full or part time service or employment or is


engaged in any trade, business or profession is not to be

admitted as an advocate. Rule 2 of the Enrollment Rules

requires every person applying to be admitted as an

advocate, to make a declaration in his application that he is

not in full or part time service or employment and that he is

not engaged in any trade, business or profession contrary to

the rules of State Bar Council and of the Bar Council of India

made under the Act. In case, he is, he has to disclose full

particulars of such service, employment or engagement. Rule

10 provides that in the event of Rule 2 coming into force, the

advocate has to deposit his enrollment certificate with the

Bar Council as a mark of his having ceased to practice and

that such certificate shall lie in deposit with the Council,

until the advocate makes a declaration that the

circumstances mentioned in Rule 2 have ceased to exist and

that he intends to resume his practice.

2016 The writ applicant took up studies of law after a

gap of 20 years since her graduation in Commerce and

obtained degree of Bachelor of Laws during the period

between 2016 and 2019.

2018 The son of the writ applicant joined a University

for a Bachelor Degree.

2019 After getting degree of Bachelor of Laws, the writ

applicant applied for enrollment as an Advocate with a view

to clear the Bar Council Examination and getting enrollment

certificate. The writ applicant duly filled in the application

form and also paid fees of Rs.16,600/- as required. The writ

applicant also duly declared that she is in employment.

* The Bar Council of Gujarat, however, did not accept

the form of the writ applicant. The writ applicant was told

that the application was not accepted as the writ applicant

had declared that she was in employment and that a form of

only that person who makes a declaration that she is not

employed either in full or part time service or employment

and is not engaged in any trade, business or profession can

be accepted, Further persons above the age of 30 are

required to furnish an affidavit to confirm that they are at

present unemployed and their means of financial support.

This affidavit is not required where the candidate is below

30 years of age. The writ applicant was asked to resign in

order to sit for the examination.

* The writ applicant also explained that unless she

clears the exam and has the enrollment certificate, which is

essential to continue in the field of advocacy, it is not

possible for the writ applicant to give up her current

employment and lose regular income. The requests,

however, were not accepted. The writ applicant's form

stands not accepted as on today.

The writ applicant submits that the process of giving up her

current job and taking up law as a full time profession has

to be a gradual process. The writ applicant can give up her

current job and take up profession of law only when her

circumstances permit her to do so. The writ applicant

declares that she would not be engaged in two professions

or services or employments simultaneously. The writ

applicant further submits that the aforesaid rule is

manifestly arbitrary, unreasonable, violative of Article 14,

19(1)(g) and 21 of the Constitution of India. Hence, this

petition.”

3. We have heard Ms. Megha Jani, the learned counsel

appearing for the writ applicant, Mr. R.C. Jani, the learned

counsel appearing for the Bar Council of Gujarat and Mr.

Manan A. Shah, the learned counsel appearing for the Bar

Council of India.

4. With the consent of the parties concerned and in the

peculiar facts and circumstances of the case and also with a

view to protect the interest of all concerned, we pass the

following interim order.

(i) The writ applicant shall submit an application for

enrollment on or before 09.10.2020, the copy of which is at

Annexure-D to the writ application.

(ii) The interim order is passed only for the purpose of

allowing the writ applicant to appear in the All India Bar

Examination and this order shall not be treated as a

permission to the writ applicant to continue with both, i.e,

her employment and practice.

(iii) Since fees of Rs.16,600/- is already lying deposited

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with the Bar Council of Gujarat, the payment of further fees

shall not be insisted upon. In case the current rules require

deposit of fees higher than Rs.16,600/-, the writ applicant

undertakes to pay such fees promptly.

(iv) The Bar Council of Gujarat shall accept such

application and shall not require the writ applicant to resign

from her current employment.

(v) The Bar Council of Gujarat shall issue Provisional

Enrollment Certificate to the writ applicant on or before

15.10.2020, considering that the online registration for the

next All India Bar Examination closes on 17.10.2020.

(vi) The respondents shall permit the writ applicant to

appear in the All India Bar Examination, as may be held.

(vii) The writ applicant undertakes that she will not

practice as an advocate on the basis of the Provisional

Enrollment Certificate issued to her.

(viii) The writ applicant shall further undertake that if after

the issuance of enrollment certificate and after passing of

the All India Bar Exam, if she continues to be in full or part

time service or employment or is engaged in any trade,

business or profession, she shall deposit her enrollment

certificate with the Bar Council and shall not practice as an

Advocate.

(ix) The writ applicant shall file undertaking in terms of

this order on or before 09.10.2020.

5. As stated above, this interim order is passed having

regard to the peculiar facts and circumstances of this case

and shall not be treated or cited as a precedent.

6. The main matter shall now be notified only if any of

the counsel files a note with the Registry with a request to

notify the matter for the purpose of hearing. “

3. After this Court passed the above quoted order dated

06.10.2020, the Bar Council of India came up with a Misc. Civil

Application No.01 of 2020, seeking review/recall of the order

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dated 06.10.2020, referred to above. The review/recall is prayed

for on the following grounds:-

“4. This Hon'ble Court vide order dated 6.10.2020 was

pleased to give certain directions as contained in Para 4 of

the order. However, it is pertinent to note that though the

deponent had not given any consent on behalf of the Bar

Council of India nor had instructed the Counsel concerned

giving any such consent before this Hon'ble Court, however,

Para 4 of the order records that there was consent of the

parties concerned.

5. The applicant submits that the applicant cannot give

any such consent in view of the fact that this Hon'ble Court

as well as the Hon'ble Supreme Court in the case of Jalpa

Desai vs. Bar Council of India & Ors. (supra) has specifically

held that a person who is holding a job cannot be allowed

to be enrolled as an advocate. If the opponent No.1-original

petitioner, who is holding a job, is allowed to be enrolled as

an advocate, then the same would open flood gates for

others. Even otherwise, the same is contrary to the Bar

Council of Gujarat (Enrollment) Rules and well settled

principles of law, of this Hon'ble Court and the Apex Court.

The relevant judgments passed by this Hon'ble Court and

Hon'ble Supreme Court are already annexed at Annexure-R2

(pg. 87 to 130) in the affidavit-in-reply filed on behalf of

applicant-Bar Council of India in Special Civil Application

No.15123 of 2019. The applicant therefore prays this

Hon'ble Court to review/recall the order dated 6.10.2020

passed in captioned petition and the mention of consent as

recorded in Para-4 of the order be removed.

6. The applicant humbly submits that the order dated

6.10.2020, would run contrary to the rules framed by the

Bar Council of India, Bar Council of Gujarat and the settled

law as per the judgments of this Hon'ble Court and the

Hon'ble Apex Court. The applicant therefore prays this

Hon'ble Court to recall the order dated 6.10.2020 passed in

captioned petition.

7. The applicant humbly prays this Hon'ble Court to

permit the applicant to rely on the contents of the affidavit in

reply filed by the applicant in the captioned petition at the

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time of hearing of the present applicant, and the same may

be considered as a part and parcel of this application.”

4. At the same time, the applicant also came up with a Civil

Application No.02 of 2020 with the following prayers:-

“(A) The Hon'ble Court may be pleased to direct the

Respondents to give Enrollment number to the Applicant on

the same line and in the same format as given to all other

applicants who apply for enrollment as an Advocate and

which is acceptable to and compatible with the online All

India Examination portal;

(B) For interim relief for the para A above;

(C ) For exemplary costs;”

5. In the civil application filed by the writ applicant, the

following has been pointed out:-

“2. This Hon'ble Court vide order dated 6.10.2020 passed

an interim order for the purpose of allowing the writ

applicants to appear in the All India Bar Examination.

3. In terms of the aforesaid order, the applicant

submitted an application for Enrollment on 09.10.2020. The

applicant also paid required fees. The applicant has filed an

undertaking dated 09.10.2020 before the Hon'ble Court in

terms of the order dated 06.10.2020.

4. Bar Council of Gujarat issued provisional enrollment

certificate to the applicant on the evening of 14.10.2020.

5. To the shock of the applicant, the applicant is unable

to get herself registered for the All India Bar Examination as

the Enrollment Number which is mentioned in the Certificate

is not accepted by the Online Registration system.

Enrollment Number issued by the Bar Council is usually like

G/123/2020 or G/1234/2020 consisting of only numerals

except for 'G'. In the case of the applicant, the Bar Council

has issued the Enrollment Number as G/Provisional-I/2020

which is not accepted by the Online Registration system.

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6. As is recorded in the order dated 06.10.2020 passed

by this Hon'ble Court the last date for Online Registration of

the said Form is 17.10.2020. The act on the part of the Bar

Council of Gujarat of giving an Enrollment Number which is

not compatible with the online registration format is nothing

else but an attempt to frustrate the orders passed by this

Hon'ble Court amounting to clear disobedience and contempt

of the order of the Hon'ble Court. The applicant reserves the

right to file an appropriate application under The Contempt

of Courts Act, 1971.

7. Considering that the Online Registration closes on

17.10.2020, it is necessary that a further direction is issued

to the Respondents to issue an Enrollment Number which is

issued to all other applicants and which is compatible with

the Online Registration system hence this application.”

6. Thus, the Bar Council of Gujarat, by its communication

dated 14.10.2020 addressed to the writ applicant, stated as

under:-

“To

Ms. Twinkle Rahul Mangaonkar

A-14, Shaligram 3, Vishal Tower Road,

Prahladnagar,

Ahmedabad-380051.

Madam,

I here to inform you that as per the oral order dated

06.10.2020 passed by the Hon'ble High Court of Gujarat in

Special Civil Application No.15123 of 2019, the Bar Council

of Gujarat office had received your enrollment application

form on 09.10.2020, without insisting fees of Rs.16,000/- as

the same was deposited by you earlier.

I have further to inform you that your enrollment application

was placed before the Enrollment Committee of the Bar

Council of Gujarat in its meeting dated 13.10.2020 as per

the aforesaid oral order dated 6.10.2020 with regard to

issue Provisional Enrollment to you. The Enrollment

Committee considered that the Hon'ble High Court has

passed order only for the purpose of allowing you to appear

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in the All India Bar Examination, as may be held and this

order shall not be treated as a permission to you to

continue with both i.e. your employment and practice.

Therefore, it is resolved to provisionally enroll you subject to

only appearing in the All India Bar Examination. Particulars

regarding your provisional Enrollment and its date are as

under:-

Enrollment No. G/Provisional-I/2020

Date of Enrollment 13/10/2020

The Enrollment Committee further considered that you have

to submit undertaking on or before 09.10.2020 to the

Hon'ble High Court of Gujarat in respect of that you will not

practice as an advocate on the basis of provisional

enrollment certificate issued to you and if after the issuance

of enrollment certificate and after passing of th All India Bar

Exam, if you continues to be in full or part time service or

employment or is engaged in any trade, business or

profession, you shall deposit your enrollment certificate with

the Bar Council of Gujarat and shall not practice as an

advocate.

I have to further inform you that you will not file any

vakalatnama and appear and argue cases in any of the

courts or Tribunals or such other authorities in India or

cannot wear Advocate's robe in any manner.

Thanking You,

Sd/-

(P.M. Parmar)

I/c Secretary,

Bar Council of Gujarat.”

7. We also incorporate the undertaking filed by the writ

applicant before this Court as under:-

“Undertaking of the Petitioner

I, Twinkle Rahul Mangaonkar, Age 46 years, Occupation

Service, residing at A/14, Shalimar-3, Vishal Tower Road,

Prahladnagar, Ahmedabad-380051 do solemnly affirm and

state as under;

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1. I am the petitioner in Special Civil Application

No.15123 of 2019. I have read order dated 06.10.2020

passed in the aforesaid Special Civil Application. In

compliance with the terms recorded in para-4 of the said

order, I undertake that I shall not practice as an Advocate on

the basis of the Provisional Enrollment Certificate issued to

me.

2. I further undertake that if after the issuance of

enrollment certificate and after passing of the All India Bar

Exam, I continue to be in full or part time service or

employment or is engaged in any trade, business or

profession, I shall deposit my enrollment certificate with the

Bar Council and shall not practice as an Advocate.

What is stated hereinabove is true to my knowledge.

Solemnly affirmed on this 9th day of October, 2020 at

Ahmedabad.”

8. The Bar Council of Gujarat acted very smart so as to see

that the order passed by this Court dated 06.10.2020 is diluted

or not given effect too. The Bar Council of Gujarat issued the

provisional enrollment certificate to the writ applicant on the

evening of 14.10.2020. However, much to the dismay of the writ

applicant, she was not able to get herself registered for the All

India Bar Examination as the Enrollment Number mentioned in

the certificate is not being accepted by the On-line Registration

System. The Enrollment Number ordinarily issued by the Bar

Council is like G/123-2020 or G/1234-2020, i.e,. consisting of

numeral except for the 'G'. The Bar Council of Gujarat issued

the Enrollment Number as G/Provisional-I/2020, which has not

been accepted by the On-line Registration System.

9. The Bar Council of India also seems to be putting up a

defiant stance by saying that as the writ applicant is serving in a

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private office, she is not entitled to be enrolled as an Advocate.

The argument canvassed on behalf of the Bar Council of India is

that if the writ applicant is permitted to be enrolled as an

Advocate, the same may open flood gates for the others.

10. In short, the Bar Council of India as well as the Bar

Council of Gujarat has a common argument to canvas that the

rules framed by the Bar Council of Gujarat (Enrollment) Rules

under Section 28(2)(d) read with Section 24(1)(e) of the Advocates

Act, 1961 (for short “the Act, 1961”) puts an embargo upon the

writ applicant unless she resigns from her present employment

and files an affidavit to that effect. The Bar Council of India

seeks to rely upon Rule 49 of its Rules.

11. Having heard the learned counsel appearing for the parties

and having gone through the materials on record, the only

question that falls for our consideration is whether the writ

applicant is entitled to any relief from this Court.

12. According to the writ applicant, the enrollment of

advocates is governed under Advocates Act, 1961. Section 24 of

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

as an advocate on the state roll if he fulfills the conditions

mentioned in the section. One of the conditions is that of

fulfilling such other conditions as may be specified in the rules

made by the State Bar Council under Chapter III of the Act. The

State Bar Council, in the present case, has framed the Bar

Council of Gujarat (Enrollment) Rules under Section 28(2)(d)

read with Section 24(1)(e) of the Act, 1961.

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13. As is mentioned in Rule 1 of the Enrollment Rules, a

person who is otherwise qualified to be admitted as an Advocate

but is either in full or part time service or employment or is

engaged in any trade, business or profession is not to be

admitted as an Advocate.

14. Rule 2 of the Enrollment Rules requires every person

applying to be admitted as an Advocate to make a declaration in

his application that he is not in full or part time service or

employment and that he is not engaged in any trade, business or

profession contrary to the rules of State Bar Council and of the

Bar Council of India made under the Act. In case, he is, he has

to declare full particulars of such service, employment or

engagement.

15. Rule 10 provides that in the event of Rule 2 coming into

force, the advocate has to deposit his enrollment certificate with

the Bar Council as a mark of his having ceased to practice and

that such certificate shall lie in deposit with the Council, until

the advocate makes a declaration that the circumstances

mentioned in Rule 2 have ceased to exist and that he intends to

resume his practice.

16. Ms. Megha Jani, the learned counsel appearing for the writ

applicant has argued that the rule in question is manifestly

arbitrary, unreasonable and violative of Articles 14, 19(1)(g) and

21 respectively of the Constitution of India. She would argue

that the rule, on one hand, prohibits even an entry of a person

who is engaged in any service, employment, trade, business or

profession at the stage of enrollment, while making it permissible


for an enrolled advocate to change his profession and also to get

back to the profession as a lawyer thereafter. It is argued that

the rule should be declared as violative of the above referred

articles of the Constitution.

17. Ms. Jani, in the alternative, submitted that this Court may

read down the relevant rules of the State Bar Council to the

effect that a person who makes a declaration that she is engaged

in any service, employment, trade, business or profession, may

be admitted as an advocate, however, the enrollment certificate

may remain in the custody of the Bar Council until the advocate

makes a declaration that the circumstances mentioned in Rule 2

have ceased to exist and that he/she intends to resume.

18. Mr. Manan Shah, the learned counsel appearing for the

Bar Council of India and Mr. R.C. Jani, the learned counsel

appearing for the Bar Council of Gujarat have relied upon a

decision of this Court in the case of Jalpa Pradeepbhai Desai

vs. Bar Council of India, reported in AIR (Guj) 2017 O 134 and

the decision of the Supreme Court in the case of Satish Kumar

Sharma vs. The Bar Council of Himachal Pradesh, reported

in AIR 2001 SC 509.

19. Rule 2 of the Bar Council of Gujarat (Enrollment) Rules,

reads thus;

“2) Every person applying to be admitted as an Advocate

shall in his application make a declaration that he is not in

full or part-time service or employment and that he is not

engaged in any trade, business or profession contrary to

the rules of the State Bar Council and of the Bar Council of

India made under the Act. But in case he is in such full or

part-time service or employment or is engaged in any trade,

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business or profession he shall in the declaration disclose

full particulars of his service, employment or engagement.

He shall also undertake that if, after his admission as an

Advocate, he accepts full or part-time service or employment

or is engaged in any trade, business or profession

disqualifying him from admission, he shall forthwith inform

the Bar Council of such service or employment or

engagement and shall cease to practise as an advocate,

provided that the above undertaking shall not apply to a

person who accepts service as a part-time professor, parttime

lecturer or part-time teacher-in-Iaw if the hours of his

duty in the Court are not in conflict with the hours of his

duty in the institution where he teaches law and if it is not

inconsistent with the dignity of the profession. This shall be

subject to such directions, if any as may be issued by the

Bar Council of India from time to time.”

20. Rule 10 of the Bar Council of Gujarat (Enrollment) Rules,

reads thus;

“(10) In the event of the Rule 2 coming into force, the

Advocate shall deposit his Enrolment Certificate with the

Bar Council as a mark of his having ceased to practise and

it shall lie in deposit with the Council until the Advocate

makes a declaration that the circumstances mentioned in

the Rule 2 have ceased to exist and that he intends to

resume his practise. ”

21. Rule 49 of the Bar Council of India Rules, reads thus;

“49. An Advocate shall not be 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

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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.”

22. It is a settled law that in interpreting a statute or a rule,

the Court must bear in mind that the legislature does not

intend what is inconvenient and unreasonable. If a rule leads to

an absurdity or manifest injustice from any adherence to it, the

Court can step in. A statute or a rule ordinarily should be most

agreeable to convenience, reason and as far as possible to do

justice to all. A law/rule should not be made without a purpose

or object and when it is found so, the Court should not be

hesitant in applying the principle of 'reading down' or 'reading

into' the provision to make it effective and workable, more

particularly when it is found that the object is illusory and

appears to be nothing but a shadow hunting process. A

law/rule should be beneficial in the sense that it should

suppress the mischief and advance the remedy. In interpreting

a rule, it is legitimate to take into consideration the

reasonableness or unreasonableness of any provision. Gross

absurdity must always be avoided in a statute/rule. The

expression reasonable means rational, according to the dictate

of reason and not excessive or immoderate.

23. The principal question that arises is whether we should

strike down Rules 1 and 2 of the Bar Council of Gujarat

(Enrollment) Rules being violative of Article 14 of the

Constitution or we should uphold the validity by adopting the

principle of 'reading down' or 'reading into' so as to make the

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rule effective and workable and ensure the attainment of the

object of the rule. Ordinarily, the Courts would be reluctant to

declare a law or rule invalid or ultra-vires on account of

unconstitutionality. The Court should make all possible

endeavour to interpret in a manner which would be in favour of

the constitutionality, as declaring the law or a rule

unconstitutional should be one of the last resorts which the

Court may take.

24. A validity of a rule has to be adjudged on three well

recognized tests: (1) whether the provisions of such

regulations fall within the scope and ambit of the power

conferred by the statute on the delegate; (2) whether the

rules/regulations framed by the delegate are to any extent

inconsistent with the provisions of the parent enactment and

lastly (3) whether they infringe any of the fundamental rights or

other restrictions or limitations imposed by the Constitution

(Maharashtra State Board of Secondary and Higher Secondary

Education Vs. P.B. Mukarsheth, AIR 1984 SC 1543). There is

presumption in favour of the validity of the rule.

25. In Venkayya Vs. Pullayya reported in AIR 1942 Mad.

466, a Division Bench of the Madras High Court, after referring

to a decision by the House of Lords in Blackwood Vs. London

Chartered Bank of Australia (1874) 5 PC 92, at p.108 observed

as under:-

"As has been pointed out by the House of Lords in (1874) 5

PC 92, at pg. 108, the tests to apply in considering whether

rules are within the powers of the rule-making authority

under a statute are: (1) Whether the rules are reasonable

and convenient for carrying the Act into full effect; (2)

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Whether the rules relate to matters arising under the

provisions of the Act; (3) Whether they relate to matters not

in the Act otherwise provided for and (4) Whether they are

consistent with the provisions of the Act. The validity of a

rule is to be determined not so much by ascertaining

whether it confers rights or merely regulates procedure, but

by determining whether the rule is in conformity with the

powers conferred under the statute and whether it is

consistent with the statute, reasonable and not contrary to

general principles."

26. We may quote with profit the observations of the Supreme

Court in the case of Namit Sharma Vs. Union of India

reported in (2013) 1 SCC 745. In that case, the subject matter

before the Supreme Court was the one under the Right to

Information Act, 2005. The Court made the following

observations in paragraphs 51 and 61, which are reproduced

hereinbelow:-

"51. Another most significant canon of determination of

constitutionality is that the courts would be reluctant to

declare a law invalid or ultra vires on account of

unconstitutionality. The courts would accept an

interpretation which would be in favour of the

constitutionality, than an approach which would render the

law unconstitutional. Declaring the law unconstitutional is

one of the last resorts taken by the courts. The courts

would preferably put into service the principle of ‘reading

down’ or ‘reading into’ the provision to make it effective,

workable and ensure the attainment of the object of the Act.

These are the principles which clearly emerge from the

consistent view taken by this court in its various

pronouncements."

"61. It is a settled principle of law, as stated earlier, that

courts would generally adopt an interpretation which is

favourable to and tilts towards the constitutionality of a

statute, with the aid of the principles like ‘reading into’ and/

or ‘reading down’ the relevant provisions, as opposed to

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declaring a provision unconstitutional. The courts can also

bridge the gaps that have been left by the legislature

inadvertently. We are of the considered view that both these

principles have to be applied while interpreting Section

12(5). It is the application of these principles that would

render the provision constitutional and not opposed to the

doctrine of equality. Rather the application of the provision

would become more effective."

27. In the aforesaid context, we may also refer to and rely on a

decision of the Supreme Court in the case of Ahmedabad

Municipal Corporation and anr. Vs. Nilaybhai R.

Thakore and anr. reported in 2000 (1) G.L.H 388. In that

case, under Rule 7 of the impugned Rules, "a local student" was

defined as a student who has passed SSC/new SSC

examination and the qualifying examination from any of the

High Schools or Colleges situated within the Ahmedabad

Municipal limits. According to that Rule, it was only those

students who had qualified from the educational institutions

situated within the Municipal limits would be eligible to be

treated as 'local students'. While the permanent resident

students of Ahmedabad city who for fortuitous reasons, happen

to acquire qualification from educational institutions situated

just outside the Municipal limits, namely, AUDA, would not be

eligible for being treated as the local students. The Supreme

Court noticed that the object of the rule was to provide medical

education to the students of Ahmedabad who had acquired the

necessary qualification, their selection being based on merit. If

that was the object, the Supreme Court observed whether the

classification based only on the location of the educational

institutions within or outside the Municipal area would be a

reasonable classification. The Court held that the answer had

to be in the negative. However, despite coming to the

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conclusion that the High Court was right in holding that the

rule in question suffered from an element of arbitrariness, the

remedy did not lie in striking down the impugned Rules, the

existence of which was necessary in the larger interest of the

institution as well as the populace of the Ahmedabad Municipal

Corporation. The Court observed that the striking down of the

rule would mean opening the doors of the institution for

admission to all the eligible candidates in the country, which

would definitely be opposed to the very object of the

establishment of the institution by a local Body. In such

circumstances, the following observations of the Supreme

Court in paragraph 14 are very apt and could be made

applicable to the facts of the present case.

“14. Before proceeding to interpret Rule 7 in the manner

which we think is the correct interpretation, we have to bear

in mind that it is not the jurisdiction of the court to enter into

the arena of the legislative prerogative of enacting laws.

However, keeping in mind the fact that the rule in question

is only a subordinate legislation and by declaring the rule

ultra vires, as has been done by the High Court, we would

be only causing considerable damage to the cause for which

the Municipality had enacted this rule. We, therefore, think

it appropriate to rely upon the famous and oft-quoted

principle relied on by Lord Denning in the case of

Seaford Court Estates Ltd. v. Asher ( [1949] 2 K.B. 481 (CA))

wherein he held;

"[When a defect appears a Judge cannot simply fold his

hands and blame the draftsman. He must set to work on

the constructive task of finding the intention of

Parliament, ... and then he must supplement the written

word so as to give 'force and life' to the intention of the

legislature. ... A Judge should ask himself the question how,

if the makers of the Act had themselves come across this

ruck in the texture of it, they would have straightened it out

? He must then do as they would have done. A Judge must

not alter the material of which the Act is woven, but he can

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and should iron out the creases."

This statement of law made by Lord Denning has been

consistently followed by this Court starting in the case of

M. Pentiah v. Muddala Veeramallappa 1961 AIR(SC) 1107 )

and followed as recently as in the case of S. Gopal Reddy v.

State of A.P. ( 1996 (4) SCC 596, 608 : 1996 SCC(Cri) 792 :

1996 AIR(SC) 2184, 2188) (SCC at 608 : AIR at p. 2188).

Thus, following the above rule of interpretation and with a

view to iron out the creases in the impugned rule whch

offends Article 14, we interpret Rule 7 as follows "Local

student means a student who has passed HSC (sic

SSC)/New SSC Examination and the qualifying examination

from any of the high schools or colleges situated within the

Ahmedabad Municipal Corporation limits and includes a

permanent resident student of the Ahmedabad Municipality

who acquires the above qualifications from any of the high

schools or colleges situated within the Ahmedabad Urban

Development Area."

28. We now go back to the pivotal issue. What is the object

behind Rules 1 and 2 of the State Bar Council (Enrollment)

Rules and Rule 49 of the Bar Council of India Rules?. Why such

a restriction is sought to be imposed?. Why the statute does not

permit a person enrolled as an advocate with any particular Bar

Council of the State from taking up any other vocation?.

29. According to the Black's Law Dictionary, a lawyer is “a

person learned in the law; as an attorney, counsel or solicitor, a

person licensed to practice law”. The legal profession is not a

business or a trade. A person practicing law has to practice in

the spirit of honesty and not in the spirit of mischief-making or

money-getting. The advocate is expected to devote full time to his

profession of law. Although, the profession is called a noble

profession, yet 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

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preserved, protect and promoted. An institution cannot survive

in its name or on its part 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, are aimed at to achieve the

same. Such provisions of the Act and Rules should be given

effect to in their true spirit and letter to maintain clean and

efficient Bar in the Country to serve the cause of justice which

again is noble one. {see Satish Kumar Sharma (supra)}.

30. The Supreme Court in Dr. Haniraj L. Chulani vs. Bar

Council of Maharashtra & Goa, reported in 1996 AIR 1708,

while dealing with the validity of Rule 1 of the Maharashtra and

Goa Bar Council Rules relating to enrollment of Advocates

eligibility conditions, has observed in Para-20 that “legal

profession requires full time attention and would not

countenance an Advocate riding two horses or more at a time”.

31. We have quoted Rule 49 of the Bar Council of India Rules

in paragraph 21 of this judgment. Rule 49 provides that an

advocate shall not be a full time salaried employee of any person,

government, firm, corporation or concern. The rule further

provides that so long as such advocate continues to practice,

there is no problem but if an advocate takes up any such

employment referred to above, he is obliged to intimate such fact

to the Bar Council on whose roll his name appears. The advocate

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was thereupon ceased to practice as an advocate so long as he

continues in such employment. In fact by reading down the

Rules 1 and 2 of the State Bar Council (Enrollment) Rules, we

are bringing the Rules 1 and 2 respectively of the State Bar

Council in tune or in conformity with Rule 49 of the Bar Council

of India Rules. Rule 49 specifically talks about “an advocate”. It

is suggestive of the fact that a person can be termed as an

advocate only after he is lawfully enrolled on the Bar Council.

This is suggestive of the fact that if a practicing advocate decides

to take up any other job with any person, government, firm,

corporation or concern, his duty is to intimate the Bar Council

and after the necessary intimation he would cease to practice as

an advocate.

32. It is too much to say that a person desirous to get himself

enrolled as an Advocate with the State Bar Council should be

asked at its inception to give up any other vocation, business or

job and only, thereafter, he can be enrolled on the roll of the

State Bar Council. We are dealing with a matter, in which, as

single mother has come before us saying that no sooner she is

enrolled as an Advocate after clearing the Bar Council Entrance

Exam, then she would file a declaration on oath that she has

given up the job which she has as on date. The lady is in a

helpless situation. Today, if she gives up her job being a single

mother, and god forbid if she is unable to clear the All India Bar

examination, then she would be left without any means of

livelihood. She has made herself very clear that she may be

issued a provisional Sanad and such provisional Sanad shall

remain in deposit with the Bar Council of Gujarat and she would

obtain the final Sanad after clearing the Bar Council of India

Exam. She has already filed an undertaking to this effect. We

have quoted the entire undertaking in the earlier part of our

judgment. If that be so, may it not be said that the object of

Rules 1 and 2 respectively of the Bar Council of Gujarat

(Enrollment) Rules as well as Rule 49 of the Bar Council of India

Rules is protected and sub-served.

33. In such circumstances, referred to above, we read down

Rules 1 and 2 respectively of the Bar Council of Gujarat

(Enrollment) Rules so as to read that a person may be either in

full or part time service or employment or is engaged in any

trade, business or profession, who otherwise is qualified to be

admitted as an Advocate shall be admitted as an Advocate,

however, the enrollment certificate of such a person shall be

withheld with the Bar Council and shall lie in deposit with the

Council until the concerned person makes a declaration that the

circumstances mentioned in Rule 2 have ceased to exist and that

he or she has started his/her practice.

34. We, accordingly, direct the Bar Council of Gujarat as well

as the Bar Council of India to act accordingly after applying the

rules in consonance with what has been stated above and issue

a provisional Sanad to the writ applicant so as to entitle her to

appear in the Bar Council of India Exam.

35. The Bar Council of Gujarat shall issue the Enrollment

Number to the writ applicant on the same line and in the same

format as given to all other applicants who apply for enrollment

as an Advocate and which is acceptable to and compatible with

the On-line All India Bar Examination portal. Let this exercise

be undertaken at the earliest and the registration number shall

be given to the writ applicant within a period of three days from

the date of issue of the writ of this order.

36. With the above, this writ application stands disposed of.

37. In view of the order passed in the main matter, the Misc.

Civil Application as well as the Civil Application also do not

survive and are disposed of accordingly.

(VIKRAM NATH, CJ)

(J. B. PARDIWALA, J)


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